Petitioners, by counsel, and unto this Honorable Court, respectfully submit their supplemental Motion for Reconsideration of this Honorable Court’s Judgment dated April 28, 2010 in the instant case on the following submissions:

PREFATORY STATEMENT
The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
–1987 CONST. Art. II, § 2
The State values the dignity of every human person and guarantees full respect for human rights.
– 1987 CONST. Art. II, § 11

But if what, God forbid, these Conventions should ever have to be applied, they must be obeyed.
– M.W. Mouton

Towards the end of its Judgment of April 28, 2010, this Honorable Court expresses its great sympathy for Petitioners, saying its members “cannot begin to comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers.” And then it goes on to say that it is “deeply concerned” that – in “apparent contravention of fundamental principles of law” – the Malaya Lolas “appear to be without a remedy to challenge those that have offended them before appropriate fora.”
In the first place, it is highly improper for this Honorable Court’s Judgment of April 28, 2010 to wholly lift, without proper attribution, from at least three sources – an article published in 2009 in the Yale Law Journal of International Law, a book published by the Cambridge University Press in 2005 and an article published in 2006 in the Case Western Reserve Journal of International Law – and make it appear that these sources support the assailed Judgment’s arguments for dismissing the instant Petition when in truth, the plagiarized sources even make a strong case for the Petition’s claims;
Petitioners’ counsel are mindful that in raising this matter they bring serious charges against the integrity of this Honorable Court’s deliberations in this case. But if Petitioners’ counsel are to take faithfully their duty as officers of the court sworn to uphold the Constitution and the law, they realize – and this, not without much trepidation – that they only renege on such high legal duty if they choose to keep their peace.
In fact, under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, they have a duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”
Surely, Petitioners may not be begrudged their right to expect of the supreme interpreter of laws –their last hope of redress for the historical injustices they have borne in shame and sorrow for over half a century because of inexcusable government neglect – the highest standards of jurisprudence in international law.
This Honorable Court itself has stated in a disciplinary case against a judge that the decisions of courts need not only be just but must be perceived to be just and completely free from suspicion or doubt both in its fairness and integrity.
Canon 1, Rule 2.01 of the Code of Judicial Conduct states that a judge “should behave at all times as to promote public confidence in the integrity and impartiality of the judiciary” and with Canon 3, Rule 3.01 of the same Code which provides that a judge “shall be faithful to the law and maintain professional competence.”
The High Court’s authoritative function requires no less than a scholarship with high intellectual and moral integrity, especially in a case of transcendental importance such as this. Indeed, it cannot faithfully dispense with its constitutional duty to render justice to whom it is due without such singular conscientiousness.
Under our system of judicial adjudication, judicial decisions become part of the law of the land.
As Art. 8 of the New Civil Code would put it, “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.” Moreover, a globalized world has made it easier for courts from different parts of the globe to cite one another in their judgments. Jurisprudence steeped in serious error and falsity ultimately injures the cause of an international legal order founded on a common respect for the Rule of Law. The very integrity of the idea of a just judicial precedent is at stake here.
Unfortunately, the assailed Judgment has already been posted on this Honorable Court’s website; it will now be easier for the world – and of course, the authors of the above-named articles – to know about the intellectual theft that happened in the hallowed halls of the Philippine Supreme Court.
In this controversy, the evidence bears out the fact not only of extensive plagiarism but also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition.
Moreover, infringement of copyright – arguably at the very least an instance of moral turpitude – is a criminal offense under the applicable Philippine law on intellectual property. Art. 217 of the new Intellectual Property Code, Republic Act 8293, imposes a penalty of imprisonment of one (1) year to three years (3) plus a fine ranging from P50,000 to P100,000 on copyright infringement on a first offense.

The assailed Judgment is the Judgment not of a mere Division but of the Supreme Court en banc itself. In accordance with § 13, Art. VIII of the 1987 Charter, the Chief Justice of this Honorable Court certified that the conclusions in its Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. The full court signed the Judgment – all 13 sitting Honorable Justices of this Honorable Court at that time.
Five of the Justices concurred in the result: then Chief Justice Reynato S. Puno, Associate Justice Conchita Carpio-Morales, Associate Justice Diosdado M. Peralta and Associate Justice Antonio Eduardo B. Nachura (who issued a separate opinion concurring in the result, and which was issued by Associate Justices Carpio-Morales and Diosdado M. Peralta) Associate Justice Antonio T. Carpio concurred in the result on the ground that the Petitioners’ claims are barred by the Peace Treaty Between the Philippines and Japan (a point Petitioners vigorously dispute in extenso below).
Meanwhile, the following Associate Justices concurred in full with the opinion written by Associate Justice Mariano C. Del Castillo – Renato C. Corona (now the incumbent Chief Justice), Presbitero Velasco, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Roberto A. Abad, Martin S. Villarama, Jr. and Jose Portugal Perez.
This Honorable Court has dismissed judges for less serious offenses. Indeed, in its illustrious past, in one such case, this Honorable Court has had occasion to say of the competence of magistrates in this wise:
In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities place a premium on how he has complied with his continuing duty to know the law. A quality thus considered essential to the judicial character is that of “a man of learning who spends tirelessly the weary hours after midnight acquainting himself with the great body of traditions and the learning of the law; is profoundly learned in all the learning of the law; and knows how to use that learning.”
Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession, to know the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of the legal principles. For, service in the judiciary means a continuous study and research on the law from beginning to end….
It has been said that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. This means that a judge should not only render a just, correct and impartial decision but should do so in such a manner as to be free from any suspicion as to its fairness and impartiality and as to his integrity. While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is more important that he should act and behave in such a manner that the parties before him should have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His actuations should moreover inspire that belief. Like Caesar’s wife, a judge must not only be pure but beyond suspicion.
Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22 A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of laws and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may have detrimental consequences beyond the immediate controversy. He should administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of the law. These are immutable principles that go into the very essence of the task of dispensing justice and we see no reason why they should not be duly considered in the present case…..
To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or ignorance, it must be clearly shown that although he has acted without malice, he failed to observe in the performance of his duty that diligence, prudence and care which the law is entitled to exact in the rendering of any public service. Negligence and ignorance are inexcusable if they imply a manifest injustice which cannot be explained by a reasonable interpretation, and even though there is a misunderstanding or error of the law applied, it nevertheless results logically and reasonably, and in a very clear and indisputable manner, in the notorious violation of the legal precept…. [emphasis supplied]

It is thus every lawyer’s serious and urgent concern that this Honorable Court address and disclose to the public the truth about the manifest intellectual theft and outright plagiarism discovered (and discoverable by the rest of the world) from the Court’s published Judgment, which did not only twist the content of such texts, but worse, resulted in gross prejudice to Petitioners.
It is also for this reason that Petitioners are submitting before this Honorable Court their Supplemental Motion for Reconsideration, having discovered the plagiarism after the filing of the Motion for Reconsideration. Petitioners are compelled to further address the relevant material points made in the assailed Judgment on account of the fact that these were substantially based on sources plagiarized and twisted out of context and therefore stand on shaky if not contravening legal grounds.
More importantly, Petitioners are left without any remedy for the injury they suffered under the Japanese Imperial Army’s Comfort Women System during the last World War because this Honorable Court refuses to grant them recognition before the law. Petitioners take issue with this Honorable Court’s holding that it is not within its power to compel the Executive Department to take up their cause as theirs is only the power to urge and exhort the Executive Department to do so, as all the prerogatives on foreign policy imperatives belong solely to the President.
On the contrary, as the Supreme Court itself has recognized when it outlined the constitutional regime governing the issuance of the writs of Amparo and Habeas Data, it has the constitutionally-mandated duty to ensure that redress for the impairment of the constitutional rights of citizens are given the appropriate remedy.
This Honorable Court has already acknowledged that the fundamental rights of Petitioners had been violated; it cannot then say that all that it can offer to them are words of sympathy. This Honorable Court has a duty to do justice – to protect the constitutional rights of citizens.
It cannot do so by merely commiserating with the sufferings of the Petitioners without providing them with adequate legal remedies that are available under the constitution. Its contention that it can only sympathize with Petitioners for their shame and suffering because the legal remedy they seek is not available runs counter to its own pronouncements on its expanded certiorari powers, most recently expounded upon in the Manalo Brothers case.
Such is the Amparo protection found in Art. VII, § I of the 1987 Charter, which empowers the courts “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” According to the Manalo Brothers case, the Grave Abuse Clause, “accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo.”
Indeed, the assailed Judgment is a profoundly inexplicable disavowal of this Honorable Court’s constitutional mandate and a grievous denial of justice that finally banishes from history the claims of Filipino Comfort Women.
In the end, what this Honorable Court purports to do is to enshrine as an impregnable precedent in our jurisprudential history the dubious and dangerous legal principle that despite a clear violation of their fundamental rights under law and the constitution, where the President refuses to recognize such rights, claimants can only look to Heaven at the consummation of the Day of Judgment for the redress of the grievous wrongs suffered.

The submissions and after that, the discussion:

THE SUBMISSIONS

I.

IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.

II.
THEN AS NOW, THE CRIMES COMMITTED BY MEMBERS OF THE JAPANESE IMPERIAL ARMY AGAINST PETITIONERS CONSTITUTE VIOLATIONS OF JUS COGENS NORMS – OR AT THE VERY LEAST, OF CUSTOMARY NORMS BINDING ON ALL CIVILIZED NATIONS – AND ARE THEREFORE SUBJECT TO THE ERGA OMNES DUTY TO PROSECUTE INTERNATIONAL CRIMES UNDER INTERNATIONAL LAW.

III.

MOREOVER, THE INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES HAS LONG BEEN CONSTITUTIONALIZED IN PHILIPPINE CONSTITUTIONAL HISTORY, REACHING ITS FULLEST EXPRESSION IN THE 1987 CHARTER. INDEED, OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS’ ASSERTION THAT THE EXECUTIVE’S FOREIGN POLICY PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS, INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS OF WHICH THE PHILIPPINES IS A PARTY.

IV.

INDEED, THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE FUNDAMENTAL RESPONSIBILITY OF STATES TO PROTECT THE HUMAN RIGHTS OF ITS CITIZENS – ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS.

V.

THE FILIPINO COMFORT WOMEN’S CLAIMS COULD NOT HAVE BEEN A LEGAL SUBJECT OF THE TREATY OF PEACE AS THESE ARE NOT PRIVATE CLAIMS BUT ARE IN FACT CLAIMS ARISING FROM WAR CRIMES AND JUS COGENS NORMS SUBJECT TO ERGA OMNES OBLIGATIONS UNDER INTERNATIONAL LAW. AS SUCH, THE CLAIMS RAISED BY PETITIONERS AGAINST THE STATE OF JAPAN IS AS WELL THE INTEREST OF THE INTERNATIONAL COMMUNITY AS A WHOLE UNDER THE LAW OF STATE RESPONSIBILITY, NOT TO MENTION THAT SUCH WAIVER IS PROHIBITED UNDER PHILIPPINE LAW.

THE DISCUSSION

I. IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.

On the matter of the article A Fiduciary Theory of Jus Cogens, by Evan J. Criddle and Evan Fox-Decent, published in the Yale Journal of International Law (2009)

1. With two or three exceptions, key passages of this Honorable Court’s Judgment of April 28, 2010 have been plagiarized word for word from an essay co-authored by Evan J. Criddle and Evan Fox-Decent that appeared in Volume 34 of the Yale Journal of International Law. A copy of the article is attached as ANNEX A, with the plagiarized sections duly highlighted for easy reference. The pertinent pages (27-32) of this Honorable Court’s 33-paged Judgment, where the plagiarized sections of the three sources e were used, is attached as ANNEX B. The relevant portions of the pertinent pages were highlighted as well for easy reference.

2. Petitioners here choose to discuss first the theft of ideas from Criddle and Fox-Decent’s article because it is here where the plagiarism was most extensive. Criddle is Assistant Professor of Law at the Syracuse University College of Law in New York, teaching international law, administrative law and civil procedure. Fox-Decent is Associate Professor of Law at the McGill University Faculty of Law in Canada, handling legal theory and human rights law, among other courses.

3. In the following, Petitioners quote from the passages as they appeared in the Yale Journal of International Law article and cross-refer them with the Judgment of April 28, 2010 as these same passages appeared there:

Yale Journal of International Law Judgment of April 28, 2010

In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom.

p. 331 of the article

In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom.

pp. 30-31 of the Judgment

Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.

p. 332 of the article

Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.

p. 31 of the Judgment

…[p]eremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law…

p. 335 of the article

…[p]eremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law…

p. 31 of the Judgment

See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

p. 331 of the article, in footnote 2

See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].

p. 31 of the Judgment, in footnote 70

Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent

p. 334 of the article
Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent

p. 31 of the Judgment, as a discussion in the first sentence of footnote 71

Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted confidently that states could not abrogate certain “universally recognized principles” by mutual agreement

p. 334 of the article Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted confidently that states could not abrogate certain “universally recognized principles” by mutual agreement

p. 31 of the Judgment, in the third sentence of footnote 71.

WILLIAM HALL, A TREATISE ON INTERNATIONAL LAW 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate[], or at least render voidable,” conflicting international agreements); 1 LASSA OPPENHEIM, INTERNATIONAL LAW 528 (1905).

p.335 of the article in footnote 9 WILLIAM HALL, A TREATISE ON INTERNATIONAL LAW 382-83 (8th ed. 1924) (asserting that “fundamental principles of international law” may “invalidate[], or at least render voidable,” conflicting international agreements); 1 LASSA OPPENHEIM, INTERNATIONAL LAW 528 (1905).

p. 31 of the Judgment, in the fourth sentence of footnote 71.

….judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.

p. 335 of the article
….judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.

Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements.

p. 335 of the article
Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements.

p. 31 of the Judgment, in the first sentence of footnote 72

At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy.

p. 335 of the article

At first, Verdross’s vision of international jus cogens encountered skepticism within the legal academy.

p. 31 of the Judgment, in the second sentence of footnote 72

These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War.

p. 336 of the article
These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War.

p. 31 of the Judgment, in the second sentence of footnote 72.

See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

p. 336 of the article, in footnote 18;

See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that “about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law”).

p. 31 of the Judgment, in the third sentence of footnote 72.

….the 1950s and 1960s with the United Nations International Law Commission’s (ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT)

p. 335 of the article
….the 1950s and 1960s with the United Nations International Law Commission’s (ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT)

p. 31 of the Judgment

In March 1953, Lauterpacht submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.”

p. 336 of the article In March 1953, Lauterpacht submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.”

p. 31 of the Judgment, in footnote 73

….that certain international norms had attained the status of jus cogens.

p. 337 of the article

….that certain international norms had attained the status of jus cogens.

p. 31 of the Judgment

[S]ee,….. Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

p. 337 of the article, in the second sentence of footnote 23

[S]ee,….. Summary Records of the 877th Meeting, [1966] 1 Y.B. Int’l L. Comm’n 227, 230-231, U.N. Doc. A/CN.4/188 (noting that the “emergence of a rule of jus cogens banning aggressive war as an international crime” was evidence that international law contains “minimum requirement[s] for safeguarding the existence of the international community”).

p. 31 of the Decision, in footnote 74

….the ILC was unable to reach a consensus….[on] the proper criteria for identifying peremptory norms.

p. 337 of the article

….the ILC was unable to reach a consensus….[on] the proper criteria for identifying peremptory norms.

p.31 of the Judgment

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”

p. 337 of the article
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”

p. 227 of the article, in footnote 27
Second Report on the Law of Treaties, [1963] 2 Y.B. Int’l L. Comm’n 1, 52, U.N. Doc. A/CN.4/156.

p.32 of the Judgment, in footnote 75.

In commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to . . . leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”

p. 338 of the article In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to . . . leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”

p. 346 of the article, in footnote 67 Armed Activities on the Territory of the Congo, Jurisdiction of the Court and
Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 31-32, available at http://www.icj-cij.org/docket/files/126/10435.pdf

p. 32 of the Judgment, in the second sentence of footnote 77

In some municipal cases, courts have declined to recognize international norms as peremptory while expressing doubt about the proper criteria for identifying jus cogens

p. 346 of the article In some municipal cases, courts have declined to recognize international norms as peremptory while expressing doubt about the proper criteria for identifying jus cogens

In other cases, national courts have accepted international norms as peremptory, but have hesitated to enforce these norms for fear that they might thereby compromise state sovereignty.

p. 346 of the article
In other cases, national courts have accepted international norms as peremptory, but have hesitated to enforce these norms for fear that they might thereby compromise state sovereignty.

p. 32 of the Judgment, in the fifth sentence of footnote 77

See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil remedy enforceable in a foreign court).

p. 346 of the article, in footnote 73
See, e.g., Bouzari v. Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a civil remedy enforceable in a foreign court).

p. 32 of the Judgment, in the sixth sentence of footnote 77

In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with other principles of general international law.

p. 346-347 of the article
In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed with other principles of general international law.

p. 32 of the Judgment, in the seventh sentence of footnote 77

See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 2 (dissenting opinion of Judge Dugard),

p. 347 of the article, in the first sentence of footnote 74

See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 2 (dissenting opinion of Judge Dugard),

p. 32 of the Judgment, in the eighth sentence of footnote 77

Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.

p. 347 of the article Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.

p. 32 of the Judgment, in the ninth sentence of footnote 77

….Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61).

p. 347 of the article, in footnote 75

Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61).

p. 32 of the Judgment, in the tenth sentence of footnote 77.

4. The Judgment of April 28, 2010 never made any reference to the article to indicate that in fact, the legal arguments it employed to deny the Petition were taken from the article; the effect of the omission of proper attribution is to make it appear that the key arguments made in the Judgment with respect to jus cogens norms are a product of the opinion-writer’s original research –and not someone else’s – and based as well on firm legal grounds.

5. A careful examination of the stylistics of the pertinent portions of the Judgment will show the clever way in which the arguments lifted from the plagiarized article were employed; important points on the matter of jus cogens norms – upon which Petitioners anchored their contention that the State has a duty in international law to prosecute international crimes – were taken without proper attribution from the article and used as the Judgment’s own.

6. And where appropriate, the corresponding footnote references and footnote texts in the Yale Law Journal of International Law article were likewise used in the pertinent pages of the Judgment; practically all the footnotes in pp. 31-32 of the Judgment – where the all-important arguments dismissing the claims raised by Petitioners on jus cogens grounds are found – were taken from the article and copied word for word (with the exception of ever so slight variations made in a handful of examples), without proper attribution.. In some cases, sentences from the essay’s main body were copied word for word and used as footnote details without proper attribution, thus making them appear like they were the words of the opinion-writer.

7. In any case, as the title of the plagiarized article suggests, it is a proposed reworking of the dominant hierarchical theory of jus cogens norms; as it stands, the fiduciary theory remains a minority view. Even so, the authors acknowledge that in current international law, seven categories of norms have achieved the status of jus cogens norms: (a) slavery or slave trade; (b) murder or disappearance of individuals; (c) torture or other cruel, inhuman, or degrading treatment or punishment (d); prolonged arbitrary detention; (e) systematic racial discrimination; and “the principles of the United Nations charter prohibiting the use of force (f).

8. Moreover, the fiduciary theory it propounds is also of the view that “each of these well-established norms merits peremptory treatment.”

9. In other words, this very same article that the Judgment of April 28, 2010 plundered for ideas to support its contention that the claims Petitioners have founded on jus cogens norms are unavailing ACTUALLY agree with the Petitioners’ fundamental claims. Expounding on a key principle of the fiduciary view, the authors contend thus:

At a minimum, the fiduciary model’s criterion of equal security – the principle that a state may not exploit individuals as mere means to its own ends – limits state legislative and administrative power by outlawing grave offenses such as genocide, crimes against humanity, summary executions, torture, forced disappearances, and prolonged arbitrary detention. Such flagrant abuses of state power deny a state’s beneficiaries secure and equal freedom and therefore trigger international law’s strictest peremptory prohibitions

10. Thus, a faithful reading of the entire article (from which numerous portions were selectively plagiarized in the Judgment) shows that crimes against humanity and torture — the very crimes suffered by Petitioners here — constitute jus cogens. The Judgment’s claim that these crimes do not constitute violations of jus cogens is plainly false.

On the matter of the book Enforcing Erga Omnes Obligations, by Christan J. Tams, published by the Cambridge University Press (2005)

11. This Honorable Court’s Judgment of April 28, 2010 also lifted without attribution from Christian J. Tams’ 2005 book, Enforcing Erga Omnes Obligations in International Law. Most likely, the opinion writer stole from the book excerpt – a 10-page portion of its introductory chapter – that the book’s publisher, the Cambridge University Press – has made available to the public through its website. A copy is attached as ANNEX C. The plagiarized portions have been highlighted for this Honorable Court’s convenience.

12. In the following, Petitioners quote from the passages as they appeared in Tams’ book excerpt and cross-refer them with the Judgment of April 28, 2010 as these same passages appeared there:

Excerpt of Christian J. Tam’s 2005 Book Judgment of April 28, 2010

The Latin phrase ‘erga omnes’ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law.

p. 3 in the except

The Latin phrase ‘erga omnes’ thus has become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order based on law.

p. 30 in the Decision

As often, the reality is neither so clear nor so bright.

p. 3 in the excerpt

[However, as is so often the case], the reality is neither so clear nor so bright.

p. 30 in the Decision

….whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realised in practice.

p. 3 in the excerpt

[W]hatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realised in practice.

p. 30 in the Decision
Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment: ‘Viewed realistically, the world of obligations erga omnes is still the world of the ‘‘ought’’ rather than of the ‘‘is’’

p. 3-4 of the excerpt
Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment: ‘Viewed realistically, the world of obligations erga omnes is still the world of the ‘‘ought’’ rather than of the ‘‘is’’

p. 30 of the Decision, in the first sentence of footnote 69

13. Now in the second sentence of footnote 69, there is a reference there that said, “See Tams, Enforcing Obligations Erga Omnes in International Law (2005), immediately after the reference to Simma’s work, The Charter of the United Nations: A Commentary.

14. The way in which the reference to Tams’ book was made – which is totally different from the reference system used all throughout – does not make sense, unless the Judgment in question meant to refer the reader to Tams’ work as an entirely different source he or she may wish to check. Besides, the sentences in the paragraph for which footnote 69 was meant to serve as reference signal were not placed in quotation marks to indicate that they are direct quotes from Tams’ book. It must be noted that the reference system used for the source of the comment appropriating Simma’s work is the Harvard Blue Book. But the one used for the Tams reference is something else. It certainly used neither the Oxford Standard Citation of Legal Authorities (OSCOLA) nor the Philippine Manual of Legal Citations (PMLC).

15. Whatever the case, the questioned Judgment’s move to marshal Tams’ work to support its contention that the doctrine of erga omnes obligations in international law is a problematic concept without any practical application is to say the least, grossly inaccurate, because the author has by all indications written a book exploring how erga omnes obligations may be enforced and have been enforced.

16. In other words, the source plagiarized by the Judgment of April 28, 2010 to denigrate the doctrine of erga omnes obligations – Christian J. Tams’ book – actually argues for a central place for erga omnes obligations in the enforcement of international law.

17. This should be fairly obvious in his work’s title: Enforcing Erga Omnes Obligations in International Law. (or a study, in his words, “on attempts to induce a State to cease its wrongful conduct and to remedy its consequences.”)

18. Here, Tams, first of all, made a rundown of contemporary objections or reservations to the workability of erga omnes obligations as a legal doctrine and then proceeded to examine the ways in which it may be worked out in practice and how it is now being worked out in practice. “The present study,” he says, “attempts to demystify aspects of the ‘very mysterious’ concept and thereby to facilitate its implementation.”

19. Tams’ chosen method is to identify the different obligations erga omnes, analyze contentious ICJ proceedings involving these obligations and finally evaluate the effectivity of countermeasures as means of enforcing them (in particular the so-called “decentralized means of enforcement” , which in his view seems to be the most promising in the arsenal of enforcement measures ).

20. Some of the assumptions about erga omnes on which his study proceed are the following: obligations erga omnes have an important bearing on enforcement in international law, because not only does it concern the legal interest of all states but also that it involves many issues not at all related to enforcement; (2) the analysis of countermeasures and the relevant ICJ proceedings bears out the significance of measures of decentralized enforcement by states, that is, “measures taken by groups of States and may even include measures agreed within the framework of an international organisation, as long as these are directed against non-member States,” inasmuch as “State enforcement remains an essential aspect of protecting general interests under international law.” (3) countermeasures and CJ proceedings are the very things most affected by the concept of erga omnes obligations , considering that (a) the concept enhances the enforcement of international law and (b) “States can respond against erga omnes breaches in a way not otherwise open to them.”

21. If there is still any doubt about the book’s intent, the blurb provided by the book’s publishers as it appears on its website, will obliterate it:

The concept of obligations erga omnes – obligations to the international community as a whole – has fascinated international lawyers for decades, yet its precise implications remain unclear. This book assesses how this concept affects the enforcement of international law. It shows that all States are entitled to invoke obligations erga omnes in proceedings before the International Court of Justice, and to take countermeasures in response to serious erga omnes breaches. In addition, it suggests ways of identifying obligations that qualify as erga omnes. In order to sustain these results, the book conducts a thorough examination of international practice and jurisprudence as well as the recent work of the UN International Law Commission in the field of State responsibility. By so doing, it demonstrates that the erga omnes concept is solidly grounded in modern international law, and clarifies one of the central aspects of the international regime of law enforcement.

On the matter of the article Breaking the Silence: On Rape as an International Crime, by Mark Ellis, published in the Case Western Reserve Journal of International Law (2006).

22. A significant portion of the long commentary on the international crime of rape found in footnote 65, p. 27-28 of the Judgment of April 28, 2010 has been copied word for word without proper attribution from an important article written by Mark Ellis on the subject for Case Western Reserve Journal of International Law in 2006. It is readily available in the internet through Brittanica Encyclopedia’s website. A copy of the article as published in the journal is attached as ANNEX D. Mr. Ellis is the current Executive Director of the International Bar Association (IBA), the foremost international organization of bar associations, law firms and individual lawyers in the world, with 198 national bar associations and 40,000 individual members from around the world. He has recently been appointed adviser to the UK Foreign and
Commonwealth Office on international rule of law initiatives.

23. A close scrutiny of footnote 65 of the Judgment, which runs from pp. 27-28, will reveal that the ponencia did not at all make any reference to the Ellis article from which a good part of its background discussion on the international crime of rape as found in footnote 65 was taken. At first glance, it would appear to the reader that the long discussion in the footnote was the ponente’s own words. But the truth is otherwise.

24. The assailed Judgment clearly lifted without attribution from the Ellis article, down to the footnotes found in the Case Western Reserve Journal of Internationa Law essay. However, what it did was it jumbled some paragraphs or sentences – as if it were ever enough to hide the plagiarism that had been committed with abandon; with some effort these paragraphs and sentences stolen from the Ellis article and re-arranged in footnote 65 of the assailed Judgment can be picked out and compared with the Ellis article.

25. In the case of one crucial assertion in the Ellis article on the role of the international criminal tribunals in Rwanda and the former Yugoslavia on the penalization of rape as an international crime, the assailed Judgment appropriated it and then added a detail that thoroughly changed its meaning.

26. According to the Ellis article, the most important development in breaking the silence of rape as an international crime has come through the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR).

27. It added thus: “[b]oth of these Tribunals have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.”

28. The assailed Judgment put it this way: “Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.”

29. Ellis was actually making the historical point that from the tribunals of the Second World War, where rape was for the most part punished as a subset of crimes against humanity, it was the tribunals for Rwanda and the former Yugoslavia that advanced the cause to penalize rape as an international crime according to three explicit categories. In fact, if one reads the subsequent sections of the article, the author would later on say that the International Criminal Court (ICC) only built on these gains made by the two earlier tribunals.

30. The comparative table below illustrating these observations diverges from the comparative tables seen above in the plagiarism involving the Yale Journal of International Law article on jus cogens norms and the book on erga omnes obligations by Christian J. Tams for the reason that here, all the plagiarized portions were appended to the assailed Judgment as part of an extensive discussion by the ponente in a single footnote – footnote 65; the opinion writer passed off the extensive footnote comments as his own, including the references found in the comments. As can be seen here, Ellis was never mentioned at all in footnote 65 as the source of the comments and the references incorporated in the comments.

31. As an example: in the Ellis article, the following paragraph opened the discussion in the article’s Section III (p. 227):

The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war.

32. As his source, Ellis cited thus in footnote 7 of his article:

For example, the Treaty of Amity and Commerce Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85, available at http://www.yale.edu/lawweb/avalon/diplom acy/germany/prus1785.htm (last visited Nov. 20, 2003).

33. The opening sentences of the Ellis article were also the opening sentences of footnote 65 of the assailed Judgment, copied word for word from the former.

34. The above discussion in footnote 7 of the Ellis article however, appeared as the fifth sentence of footnote 65 in this wise as part of its running commentary:

(For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85.

35. Notice that the opinion writer chopped off the original reference made by the Ellis article on the Treaty of Amity and Commerce between Prussia and the United States the website of the Yale Law School Avalon Project , from which Ellis sourced the text of the Treaty.

36. As an example of how the assailed Judgment juggled the sentences it copied from the Ellis article, we cited the third sentence of the latter concerning the 1863 Lieber Instructions:

The 1863 Lieber Instructions, which codified customary international law of land warfare, classified rape as a crime of “troop discipline.”

37. The above sentence was the third sentence in Section III of the Ellis article (p. 227) and the source of the same information was referenced by the author in footnote 8, which reads (in what appears to be the Harvard Blue Book format):

David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L L. 219, 224.

38. The Lieber Instructions discussion appeared in slightly different form as the sixth sentence of the commentary found in footnote 65 of the assailed Judgment, with its reference – also modified by the ponencia by removing the author’s first name (the “David” in “David Mitchell”) appended to it thus:

The 1863 Lieber Instructions classified rape as a crime of “troop discipline.” (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224

39. And so on. Thus in the table below, the emphasis found in certain texts of the comparative table have been added merely to highlight them as sentences juggled by the opinion writer in the assailed Judgment (although not all of these juggled sentences have been highlighted; the device was used only to make it easier for the reader to spot them). For easier reference, the plagiarized portions of the Ellis article have been numbered as sentences in the comparative table. Thus, where appropriate, the discussion in the “Footnote 65” section of the comparative table will be cross-referred with the numbered sequence in the Ellis article section of the comparative table..

40. Where appropriate footnotes are also used to indicate the exact locations in the Ellis article of the references stolen by the assailed Judgment:

Ellis article on rape as an international crime Footnote 65 of the Judgment of April 28, 2010
The concept of rape as an international crime is relatively new.

p. 227, first sentence of Section III of the article The concept of rape as an international crime is relatively new.
First sentence of footnote 65

This is not to say that rape has never been historically prohibited, particularly in war.

p. 227, second sentence of Section III of the article This is not to say that rape has never been historically prohibited, particularly in war.
Second sentence of footnote 65

The 1863 Lieber Instructions, which codified customary international law of land warfare, classified rape as a crime of “troop discipline.”

p. 227, third sentence of Section III of the article The 1863 Lieber Instructions [….]classified rape as a crime of “troop discipline.”

Seventh sentence of footnote 65

It specified rape as a capital crime punishable by the death penalty.

p. 227, fourth sentence of Section III of the article. It specified rape as a capital crime punishable by the death penalty
Ninth sentence of footnote 65

Id. at 236.
p. 227, footnote 9 of the article
(Id. at 236).
Found as appended to the ninth sentence of footnote 65 above.

The 1907 Hague Convention protected women by requiring the protection of their “honour.”

p. 227, fifth sentence of Section III of the article. The 1907 Hague Convention protected women by requiring the protection of their “honour.”
Tenth sentence of footnote 65
But modern day sensitivity to the crime of rape did not emerge until after World War II.

p.227, sixth sentence of Section III of the article. But modern-day sensitivity to the crime of rape did not emerge until after World War II.
Third sentence of footnote 65

[After World War II, when the Allies established the Nuremberg Charter], the word rape was not mentioned.

p. 227, fourth sentence of Section III of the article. In the Nuremberg Charter, the word rape was not mentioned.

Fourth sentence of footnote 65

The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name.

p. 227, eighth sentence of Section III of the article. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name.
Fifth sentence of footnote 65
Article 6(c) of the Charter established crimes against humanity as the following:

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, dportation, and other inhumane acts committed against any
civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

p. 227, ninth sentence of Section III of the article. Article 6(c) of the Charter established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Fourteenth sentence of footnote 65

The Nuremberg Judgment did not make any reference to rape and
rape was not prosecuted.

10th sentence of Section III of the article. The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted.

15th sentence of footnote 65

It was different for the Charter of the International Military Tribunal
for the Far East.

p.228, 12th sentence of Section III of the article.
However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape.
17th sentence of footnote 65

The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority.

p. 228, 13th sentence of Section III of the article.
The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority .
18th sentence of footnote 65

The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity.

p. 228, 20th sentence of Section III of the article.
The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity.
20th sentence of footnote 65

Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts.

p. 228, 21st sentence of Section III of the article. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts.
21st sentence of footnote 65

The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women.

p. 228, 22nd sentence of Section III of the article.
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day international instrument to establish protections against rape for women.

23rd sentence of footnote 65

However, the most important development in breaking the silence of rape as an international crime has come through the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR).

Both of these Tribunals have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

p. 228, 23rd and 24th sentence, respectively of Section III of the article

Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

25th sentence of footnote 65

For example, the Treaty of Amity and Commerce Prussia and the United States providesthat in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.Pruss.8 TREATIES & OTHER INT’L
AGREEMENTS OF THE U.S. 78, 85, available at http://www.yale.edu/lawweb/avalon/diplom
acy/germany/prus1785.htm (last visited Nov. 20, 2003).

p. 227, found in footnote 7 of Section III of the article. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children “shall not be molested in their persons.” The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER INT’L AGREEMENTS OF THE U.S. 78, 85.

Sixth sentence of footnote 65

David Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm
of Jus Cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L L. 219, 224.

p. 227, found in footnote 8 of the article. (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 DUKE J. COMP. INT’L. L. 219, 224).
Eighth sentence of footnote 65

“Family honour and rights, the lives of persons, and private property, as well as religious
convictions and practice, must be respected.” Convention (IV) Respecting the Laws &
Customs of War on Land, art. 46, Oct. 18, 1907, available at http://www.yale.edu/lawweb/
avalon/lawofwar/hague04.htm#art46.

p. 227, found in footnote 10 of the article. (“Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907.

Eleventh sentence of footnote 65

See generally, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

p. 227, found in footnote 11, Section III, of the article. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
13th sentence of footnote 65

p. 228, found in footnote 13 of Section III of the Ellis article.
(Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. INT’L. COMP. L. 667, 676.)
16th sentence of footnote 65

THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY
TRIBUNAL FOR THE FAR EAST 445–54 (B.V.A. Roling and C.F. Ruter eds., 1977).

p. 228, found in footnote 18 of Section III of the article (THE TOKYO JUDGMENT: JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST 445-54 (1977).
19th sentence of footnote 65

Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946), available at http://www1.umn.edu/humanrts/
instree/ccno10.htm (last visited Nov. 20, 2003)….

p.228, found in footnote 22 of Section III of the article. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946))

41. In any case, the discussion on rape as an international crime by the Ellis article actually supports the contention by Petitioners that early there has developed as a binding customary norm in international law an absolute prohibition on rape. Before San Francisco Peace Treaty in 1951, it was already penalized as a war crime and as a crime against humanity in the 1949 Geneva Conventions, as a crime against humanity in German Courts that tried war criminals of World War II and as a war crime in the International Military Tribunal in the Far East that tried Japanese war criminals of World War II.

42. Too, Petitioners wish to add one important detail to the extensive discussion by Dr. Ellis on rape as an international crime: that right after World War I, a Preliminary Conference at Versailles created a Commission on Responsibility of the Authors of War and on Enforcement of Penalties.

43. The 15-member Commission – of which Japan was part – submitted a report to the Conference on the responsibility of belligerent states, in which it included a list of punishable war crimes as violations of the laws and customs of war. These included, among other crimes, (1) rape, (2) abduction of girls and women for the purpose of enforced prostitution, (3) deportation of civilians, (4) internment of civilians under inhuman conditions and (5) forced labor of civilians in connection with the military operations.

44. Moreover, the Japanese delegates issued a statement annexed to the Commission’s report published in 1920, which read thus:

The Japanese delegates on the Commission on Responsibilities are convinced that many crimes have been committed by the enemy in the course of the present war in violation of the fundamental principles of international law, and recognize that the principal responsibility rests upon the individual enemies in high places. They are consequently of the opinion that, in order to re-establish for the future the force of the principles thus infringed, it is important to discover practical means for the punishment of the persons responsible for such violations.

45. As Dean Magallona notes, “a study of cases involving ‘comfort women’ showed that Japan committed all these acts on comfort women.” Indeed, he says that Japan cannot deny knowledge of the full legal implications of its acts involving the comfort women on account of its participation in the Commission and its public acknowledgement there that rape and forced prostitution, among other acts, are violations of the laws and customs of war.

46. The question must now be asked: why did the Judgment in question fail to reference the commentary in footnote 65 as a verbatim appropriation from the Ellis article?

47. Surely, Petitioners may not be begrudged their right to expect that a case of such transcendental and historical importance as theirs will receive a careful and jurisprudential reflection from the highest court of the land.

48. Of the 33 pages making up the Judgment of April 28, 2010, the sections that directly addressed and resolved the controversy at hand run from pp. 18-32 or a total of 15 pages; the plagiarized sections cover pp. 27-32 or six pages – or nearly half – of the full discussion of the main issues in the controversy. By any measure, the plagiarism is substantial and as the above discussion shows, it deals with very material points that go into the heart of the arguments against granting the Petitioners the relief prayed for.

49. As it were, this is their last hope of redress for the historical injustices they have suffered in the last half century because their very own government has decided that it is not worth the bother to take up their claims against the State of Japan. Indeed, to this Honorable Court belongs the burden of historical expectation.

50. It therefore pains Petitioners to state that this Honorable Court’s pronouncements in this Judgment do not speak well of what it can do in the exercise of its pedagogic if authoritative function to educate the next generations of Filipinos and perhaps, of people from other nations, about the central role of the Rule of Law in the creation of a just, prosperous and stable international public order.

51. Petitioners’ counsels are mindful that the matters they now bring to this Honorable Court’s attention involve serious charges against the integrity of its deliberations in this case. But they do so only because under Canon 10, Rule 10.1 of the Lawyer’s Code of Professional Responsibility, they have a duty “not do any falsehood, nor consent to the doing of any in Court; nor shall [they] mislead, or allow the Court to be misled by any artifice.”

52. Moreover, the Code obligates them to resist any falsehood done in Court. Such proscriptions on falsehood equally apply to the honorable members of the Bench, even more so, of this Honorable Court. As Canon 1, Rule 1.01 of the Code of Judicial Conduct provides, “[a] judge should be the embodiment of competence, integrity and independence.”

53. A leading commentator of the Code explains:

Upon his assumption to office, a judge ceases to be an ordinary mortal. He becomes the visible representation of the law, and more importantly, if justice. He must be the embodiment of competence, integrity and independence. No position exacts greater demand on moral righteousness and uprightness of an individual than a seat in the Judiciary. A magistrate of the law must comport himself at all times in such manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice.

The standards of integrity required of members of the bench are not satisfied by conduct which barely enables one to escape the penalties of criminal law.

54. As officers of the Court, undersigned counsels are to comport themselves with candor, fairness and good faith in any proceedings before it. Candor, fairness and good faith demand that undersigned counsels every effort and consider it their duty to assist in the speedy and efficient administration of justice.

55. Falsehood – such as the extensive plagiarism ostensibly committed in the assailed Judgment of April 28, 2010 – is an impediment to the sound administration of justice by the Courts and it is the duty of undersigned counsels as officers of the Court to bring it to this Honorable Court’s attention.

56. Moreover, infringement of copyright is a criminal offense under the applicable Philippine law on intellectual property. Art. 217 of the new Intellectual Property Code, RA 8293, imposes a penalty of imprisonment of one (1) year to three years (3) plus a fine ranging from P50,000 to P100,000 on copyright infringement on a first offense. Under Art. 216 of the same law, the copyright owner may ask the court to award the payment of moral and exemplary damages as the court may deem proper, wise and equitable.

57. In this controversy, the evidence bears out the fact not only of extensive plagiarism but of also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition.

II. THEN AS NOW, THE CRIMES COMMITTED BY MEMBERS OF THE JAPANESE IMPERIAL ARMY AGAINST PETITIONERS CONSTITUTE VIOLATIONS OF JUS COGENS NORMS – OR AT THE VERY LEAST, OF CUSTOMARY NORMS BINDING ON ALL CIVILIZED NATIONS –AND ARE THEREFORE SUBJECT TO THE ERGA OMNES DUTY TO PROSECUTE INTERNATIONAL CRIMES UNDER INTERNATIONAL LAW.

58. The Court says:

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese Army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

59. This sweeping assertion by the Honorable Court involve several inter-related issues here, namely: (a) did jus cogens norms exist in 1951?; (b) Did the crimes committed by the Japanese Army violate jus cogens prohibitions at the time of Treaty of Peace was signed?; (c) Is the duty to prosecute perpetrators of international crimes an erga omnes obligation or a jus cogens norm? and (d) corollary to question (b), is there a duty to prosecute the crimes committed by the Japanese Army at the time the Treaty of Peace was signed, regardless of whether these d violated jus cogens prohibitions?

60. As Petitioners will discuss in the detail, the answers to all these questions are in the affirmative, with the qualification that the duty to prosecute international crimes is an erga omnes obligation but is not a jus cogens norm. This Honorable Court needs to take a second look at footnote 66 of its Judgment of April 28, 2010 to see why its holding is in serious error. Footnote 66 talks of the establishment of the International Criminal Court (ICC) under the Rome Statute. A careful and detailed study of the creation of the ICC and its Charter will show why Petitioners say that the answers to the questions outlined above are in the affirmative.

61. It was in recognition of the overarching need to protect fundamental human rights that the Rome Statute of the International Criminal Court provided for an international remedy against the crimes of aggression and genocide, crimes against humanity, and war crimes, crimes that constitute the darkest violations of the human rights to life, security, and dignity. Considering the inability of old remedies to protect these rights, the Statute was considered a major advance in the effort to check the recurrence of the said crimes.

62. Indeed, the establishment of the ICC has been called a “millenial project,” considering the “enormity of vision, energy and effort, in largeness of ambition and in breadth of scope” it embodies.

63. And yet, the Rome Statute is but a codification of what under customary law, had been considered as binding prohibitions on all states against these crimes; The crimes punishable by the Rome Statute violate the conscience of the world and victimize humanity at large, and they require international criminalization in order to ensure their suppression.

64. Their prohibition in international law is peremptory and absolute; any person who commits them may, under the principle of universality, be tried and sentenced by any nation that acquires jurisdiction over them; and the liability of any state that makes them its policy may be invoked against it by any member of the community of nations.

65. In fact, the Rome Statute itself, as a codification of jus cogens norms of international humanitarian law and human rights, obligates even those who are non-parties to the establishment of the International Criminal Court to act against impunity through such norms as for instance, the aut judicare out dedere principle, which applies, for example, to grave breaches of the Geneva Conventions.

66. This simply means that first and foremost, any State has a primary obligation under customary international law to prosecute war criminals, and failing that, to extradite them to the next state willing to do so.

67. Alas, the drafters of the Rome Statute were themselves, aware that they were in fact, mere codifiers of lex lata or existing customary international law, and not legislators drafting lex ferenda or a progressive development of international law.

68. The struggle against impunity, that is, the prohibition against, and the need to punish crimes against the laws of humanity, the very reason for the existence of the Rome Statute, have long become jus cogens norms.

69. As early as the North Sea Continental Cases, the ICJ affirmed the non-derogable nature of jus cogens norms by qualifying the statement that “it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases or as between particular parties” with the clause “[w]ithout attempting to enter into, still less pronounce upon any question of just cogens (par. 72).”

70. Thus it is erroneous for this Honorable Court to assert in footnote 77 of its Judgment that the ICJ “recently endorsed for the first time the jus cogens concept in the Congo case.”

71. Indeed, even before the Nuremberg trials, it has been a doctrine that certain international legal obligations prevail over national legal norms. It has been said that the Geneva Conventions not only contain an obligation to prosecute but also an obligation to search for suspects, and to establish universal jurisdiction over them. Such duty already existed in international law as well as in our Constitution by incorporation and thus refutes the assailed Judgment’s claim that jus cogens norms were non-existent in 1951.

72. The aut dedere aut judicare principle is rooted in the idea of a civitas maxima, a community of states where certain crimes are of common concern, regardless of the territory in which the crimes took place. The UN General Assembly itself has declared with respect to war crimes and war criminals:

…3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.

4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes . . . .
. . . .
. . . States shall not grant asylum to any [such] person…

73. Perhaps it is best to trace the development of jus cogens norms now codified in the relevant core crimes penalized by the Rome Statute.:

74. In the case of Genocide: Originally, it was classified as a sub-category of the crimes against humanity by Article 6(c) of the 1945 Charter of International Military Tribunal at Nuremberg, which provided thus:

…murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetuated.

75. It was applied in the trials of a small number of Nazi war criminals as in the Nuremberg trials but it was officially recognized as an independent war crime in 1948, when the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide [hereinafter Genocide Convention].The Genocide Convention, in Article 2, defined genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national ethnical, racial, or religious group, as such:”

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole
or in part;

(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another
group.

76. The UN General Assembly recognized the an act of genocide for the first and as yet, the only time, in the case of Sabra and Shatila in resolution 37/123 D, dated Dec. 16, 1982. The resolution condemned the alleged massacre of Christian Falangist troops as an “act of genocide.”

77. The Genocide Convention’s definition was copied word for word in Article 6 of the Rome Statute.

78. Article 38 para. 1(b) of the ICJ Statute provides “international custom, as evidence of a general practice accepted as law” as source of international law, custom being evidenced by state practice and opinio juris sive necessitatis. As held by the ICJ in the North Sea Continental Shelf Cases:

“[N]ot only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.

79. State practice is evidenced by signatures to and ratification of treaties – acts which express their agreement to the terms of the treaties and their willingness to be bound by such treaties. There is unanimity in the international community that genocide is prohibited.

80. That universal conviction binds even those not parties to the treaty, which to date has 133 State-Parties. The customary nature of the Genocide Convention was established by the ICJ in its Advisory Opinion on Reservations to the Convention on Genocide, where it said that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation.

81. The ICJ, in the Barcelona Traction case, also opined that outlawing acts of genocide are obligations erga omnes, meaning, obligations in which “all States can be held to have a legal interest in their protection.”

82. Also, the prohibition against genocide was repeatedly invoked as a peremptory norm during the Vienna Conference that lead to the adoption and ratification of the Vienna Convention on the Law of Treaties. It is clear that the prohibition against genocide has become a jus cogens norm from which there can be no derogation.

83. In the case of War Crimes. The prohibition on war crimes has a long history, beginning with ancient civilizations, some which have been known to draft elaborate codes of conduct in times of war.

84. The Peace of Versailles, signed following the end of World War I, expressly adopted prohibitions against war crimes. Article 228 of the treaty recognized “the right of the allied and associated powers to bring before the military tribunals persons accused of having committed acts in violation of the laws and customs of war.”

85. In Article 6 of the Nuremberg Charter, war crimes were defined as inclusive of:

…[V]iolations of the law or customs of war, but not limited to, namely, murder, ill-treatment or deportation of civilian population of or in occupied territory, to slave labour for any other purposes; ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity.

86. The Nuremberg Tribunal would hold that “by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.”

87. But war crimes as penalized in the Rome Statute are based on the four Geneva Conventions of 1949 and the Additional Protocols of 1977. There are four Geneva conventions that address different contexts of conflict: the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the filed (GC I), Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GC II), Geneva Convention Relative to the Treatment of Prisoners of War (GC III) and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV).

88. It should be noted however that nowhere in the conventions do we find the term “war crimes” – really a political compromise to accommodate the hard-line stance adopted by the Soviet negotiators on the treatment of prisoners of war convicted as “war criminals.”

89. Instead, the Conventions use the term “grave breaches” of its terms and conditions, such breaches defined by all four international instruments as:

…[T]hose involving any of the following acts, if committed against persons or property protected by the present Convention: willfull killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

90. Later, in Article 85(5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, we find the first reference to grave breaches of the Conventions as “war crimes.”

91. The Four Conventions address the conduct of belligerents in international armed conflicts; Article 3 common to all four provides the minimum protection for participants in a non-international armed conflict. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (AP II) applies to “large-scale armed hostilities, other than international disturbances and tensions, or riots or isolated or sporadic acts of armed violence, between State authorities and rebels, or between two or more organized armed groups within a State.”

92. Article 8 of the Rome Statute defines war crimes by a qualifying clause in para. 1, which reads thus: “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of large-scale commission of such crimes.”

93. The Rome Statute then classifies war crimes into four categories (1) in Article 8(2)(a), “[g]rave breaches of the Geneva Conventions of 12 August 1949”; (2) in Article 8(2)(b), “[o]ther serious violations of the laws and customs applicable in international armed conflict, wihtin the established framework of international law”; (3) in Article 8(2)(c), “[i]n the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions…”; and (4) Article 8(2)(e), “[o]ther serious violations of the laws and customs applicable in armed conflicts not onf an international character, within the established framework of international law.”

94. No one can question the universal acceptance of the Conventions. The ICJ, ruling in the Nicaragua case, said that the Geneva Conventions embody, “in some respects a development, and in other respects no more than the expression” of basic principles of international humanitarian law.

95. Hence, it ruled that the United States, has an obligation,…to ‘respect’ the Conventions, and even ‘to ensure respect’ for them ‘in all circumstances,’ since such an obligation does not derive only from the Conventions themselves, but from general principles of humanitarian law to which the Conventions merely give specific expression…

96. What is most important to this discussion in the Nicaragua case is the declaration that while the conflict between the Contras and the Sandinistas was an internal armed conflict, the intervention by the United States was governed by rules relating to international armed conflicts. The ICJ held thus:

Article 3…defines certain rules to be applied in the armed conflicts of non- international character….in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts…they reflect what the Court in 1949 called ‘elementary considerations of humanity’ (Corfu Channel…)

97. Because the minimum rules applicable to international and non-international armed conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an international character.

98. Later, the ICTY Appeals Chamber, in the Tadic case (Interlocutory Appeal), would hold that there is no longer any reason to make a distinction between international and internal armed conflicts:

Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign state?

99. On Crimes Against Humanity. Article 6(c) of the 1945 Charter of the Nuremberg Tribunal defined crimes of humanity as constituted by:

…murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

100. It was the first explicit proscription against such acts ever made in any document, one in which acts of genocide have been subsumed to crimes against humanity.

101. Both Article 5(c) of the IMTFE or the Tokyo Charter and Article II(c) of the Allied Control Council Law No. 10 carried this Nuremberg definition, albeit they also embodied certain changes on persecution. But Article 7 of the Rome Statute, with a few variations, embodies by and large, the existing customary law on crimes against humanity in this manner:

For the purpose of this Statute, ‘crimes againt humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity;
(h) Prosecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gedner…or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

102. By a fortiori logic, as acts of genocide are considered a sub-specie of crimes against humanity, it follows that the conviction of the international community that acts of genocide violate jus cogens norms should likewise apply to crimes against humanity.

103. As already noted, the ICJ, in the Barcelona Traction case, held that genocide, slavery, and racial discrimination give rise to obligations erga omnes, and hence, should be considered crimes against humanity.

104. Both the ICTY and the ICTR have subject matter jurisdiction over crimes against humanity. Article 5 of the International Criminal Tribunal for Yugoslavia’s Charter says:

The International Tribunal shall the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

105. Article 3 of the International Criminal Tribunal for Rwanda, on the other hand, provides that:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

106. Crimes against humanity are clearly held as a violations of jus cogens norms from which there can be no derogation, and the Rome Statute represents the most advanced document embodying protection and punishment against such crimes.

107. Notice that in both the prohibitions against war crimes and crimes against humanity, torture is prohibited; in both the prohibitions against war crimes and crimes against humanity, slavery is prohibited; in both prohibitions against war crimes and crimes against humanity, rape is prohibited.

108. On the Crime of Aggression. Perhaps the most controversial of the crimes punished by the Rome Statute because it is yet to be defined, nevertheless scholars are agreed that in the last 50 years or so, there has been a collection of state practice and opinio juris criminalizing it under customary international law.

109. Article 5 of the Rome Statute provides (on jurisdiction):

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: The crime of genocide; Crimes against humanity; War Crimes; the crime of aggression.

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. (numbering ommitted, emphasis supplied)

110. In the early part of the 20th century, war was considered a valid aim of any country’s foreign policy. But the horrible incidents of World War I forced the founders of the League of Nations to adopt the revolutionary idea that the international community must be based on a collective effort to maintain peace. The first individual to be officially charged for the the instigation of war was Kaiser Wilhelm II of Hohenzollern at the Treaty of Versailles in 1919, but he was never put on trial because he fled to the Netherlands, which refused to extradite him on the ground that he enjoyed immunity as head of state.

111. At the close of World War II , the Nuremberg Tribunal was established to try war criminals. Article 6(a) of its charter penalized a crime against peace, defined as “planning, preparation, initiation or waging of a war of aggression, or war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”

112. The so-called Nuremberg Principles would serve as the foundation for future efforts to enact a code penalizing the crime of aggression, from the International Law Commission which elaborated on them and the United Nations General Assembly which affirmed them in 1946. Indeed, between 1954 and 1996, the Commission would present three drafts, though none of them would pass muster. The Rome Conference would likewise fail to reach a consensus on an acceptable draft defining the crime, hence, a compromise provision providing for the Court’s exercise of subject-matter jurisdiction only when the crime has already been defined.

113. The Philippines itself has an expressed constitutional proscription against the crime of aggression in the Incorporation Clause of the 1987 Charter; “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to a policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

114. In Kuroda, there is a recognition that customary international law proscribes any crime of aggression: “…all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor.”

115. A further note on customary international law. The International Committee of the Red Cross – the international body charged with the task of monitoring compliance by states with international humanitarian law – has published in 2005 a landmark, two-volume study on customary international humanitarian law, now made available on-line.

116. This study has identified 161 rules of customary international humanitarian law covering a wide range of issues and reflecting a comprehensive assessment of state practice, as one of its editors, prominent IHL expert Jean-Marie Henckaerts, notes in an essay published in the third volume of the Asia-Pacific Yearbook of International Humanitarian Law.

117. Henckaerts says:

These customary rules are binding for all States, regardless of ratification of treaties, and also on armed opposition groups in case of rules applicable to all parties to a non-international armed conflict. The study shows that State practice has created a significant number of customary rules governing non-international armed conflicts. Indeed 148 of 161 rules identified in the study are applicable in non-international armed conflicts. These customary rules fill a large part of the gap left by treaty law in the regulation of non-international armed conflict. Finally, the study shows that many of the customary rules applicable to non- international armed conflict are the same as those applicable to international armed conflicts.

118. The following customary norms in international humanitarian law are of particular relevance to this instant proceedings, and are listed in an appendix attached to the essay:

Fundamental guarantees

Rule 89. Murder is prohibited

Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.

……

Rule 93. Rape and other forms of sexual violence are prohibited.

Rule 94. Slavery and the slave trade in all their forms are prohibited.

Responsibility and Reparation

Rule 149. A State is responsible for violations of international humanitarian law attributable to it, including:

(a) violations committees by its organs, including its armed forces;
(b) violations committed by persons or entities it empowered to exercise elements of governmental authority;
(c) violations committed by persons or groups acting in fact on its instructions, or under its direction or control; and
(d) violations committed by private persons or groups which it acknowledges and adopts as its own conduct.

Rule 150. A state responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused.

….

War Crimes

Rule 156. Serious violations of international humanitarian law constitute war crimes.

Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, investigate other war crimes over which they have jurisdiction, and, if appropriate, prosecute the suspects.

….

Rule 160. Statutes of limitation may not apply to war crimes.

Rule 161. States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.

119. Thus Petitioners find it utterly bewildering that the learned members of the High Court could support the assertion that “[n]onetheless, notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an obligation to prosecute international crimes.” The very existence of the ICC nullifies that assertion. The very existence of long-established norms in customary international law goes against it.

120. Petitioners alleged that they were victims of war crimes and crimes against humanity – in particular, of mass rape, sexual slavery, and torture – under the Comfort Women system set in place by the Japanese Imperial Army in the Philippines during World War II.

121. By way of a review of the discussion above, both treaty and customary international law provide that when rape is committed as part of a widespread or systematic attack directed at any civilian population, regardless of its international or internal character, then it constitutes one of the gravest crimes against humanity ; this principle is codified under Article 6(c) of the 1945 Nuremberg Charter as well as Article 5[c] of the Tokyo Charter, which enumerated “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian populations, before or during the war” as crimes against humanity, and extended in scope to include imprisonment, torture and rape by Control Council Law No. 10;

122. In sum, crimes against humanity entail that the prohibited acts be committed (1) before or during war, (2) as part of a large- scale or systematic attack committed against a civilian population, and (3) in connection with war crimes or crimes against the peace ;

123. The acts of the Japanese military, as exemplified in the mass rape and sexual slavery of the petitioners in Barangay Mapanique, Candaba, Pampanga (1) during the war, (2) pursuant to its widespread and state sanctioned “comfort system”, (3) in raping and forcibly subjecting Filipinas into sexual slavery, constitute a crime against humanity contrary to the norms of customary and conventional international law.

124. Moreover, under the 1926 International Slavery Convention, slavery is defined as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised , and may, furthermore, take on the form of debt bondage, and/or sexual enslavement ; Under international customary law, and treaty law , forced sexual labor and forced labor are absolutely prohibited ;

125. In exercising powers attaching to the right of ownership over Filipina “comfort women”; asserting ownership over the women by procuring them by force, purchase, and deceitful recruitment; by confining them to inhumane conditions and brutally punishing attempts to escape; subjecting them to repeated rapes and other forms of sexual violence; by otherwise torturing, mutilating and punishing them for disobedience; by subjecting them to invasive and inhumane medical examinations often involving rape; by subjecting them to unwanted pregnancies, forcing them to have abortions or give up their children; and by killing them or abandoning them when their services were no longer of use, such acts seen in whole or in part in the atrocities committed against the women of Barangay Mapanique, Candaba, Pampanga, the Japanese military clearly committed the crimes against humanity of rape and sexual slavery.

126. Finally, the Petitioners were also subjected to torture under the Comfort Women System. Under customary international law, “torture” is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of, inter alia, obtaining from him/her or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity ;

127. The rapes committed by the Japanese military against the Filipina “comfort women” as exemplified in the plight of petitioners in Barangay Mapanique, Candaba, Pampanga meet the definition of torture since they manifestly: (1) were committed by and with the acquiescence of persons acting in an official capacity; (2) were not incidental to lawful sanctions; and (3) constituted acts by which severe pain or suffering is intentionally inflicted.

128. Not only are the acts committed by the Japanese against Petitioners considered violations of jus cogens norms and are subject to an international duty to prosecute these as international crimes.

129. Too, these acts – being war crimes and crimes against humanity – are not subject to any statute of limitations, as provided for in the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Art. I of the same provides that:

No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
( a ) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
( b ) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid , and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

130. Thus, the Judgment’s assertion that “petitioners take quite a theoretical leap in claiming that these proscriptions automatically imply that the Philippines is under a non-derogable obligation to prosecute international crimes, particularly since petitioners do not demand the imputation of individual criminal liability, but seek to recover monetary reparations from the state of Japan” is a statement that seriously misinterprets current international law.

131. Such a statement glosses over a basic principle in international humanitarian law and the law on state responsibility that a state responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused independent of the individual criminal responsibility incurred by the agents of the state who committed the criminal acts. Considering that the criminal acts committed by the agents of the State of Japan are not subject to prescription, the obligation of the State of Japan to pay reparations to the victims does not prescribe as well.

III. MOREOVER, THE INTERNATIONAL OBLIGATION TO PROSECUTE INTERNATIONAL CRIMES HAS LONG BEEN CONSTITUTIONALIZED IN PHILIPPINE CONSTITUTIONAL HISTORY, REACHING ITS FULLEST EXPRESSION IN THE 1987 CHARTER. INDEED, OUR OWN CONSTITUTIONAL AND JURISPRUDENTIAL HISTORIES REJECT THIS HONORABLE COURTS’ ASSERTION THAT THE EXECUTIVE’S FOREIGN POLICY PREROGATIVES ARE VIRTUALLY UNLIMITED; PRECISELY, UNDER THE RELEVANT JURISPRUDENCE AND CONSTITUTIONAL PROVISIONS, SUCH PREROGATIVES ARE PROSCRIBED BY INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN STANDARDS, INCLUDING THOSE PROVIDED FOR IN THE RELEVANT INTERNATIONAL CONVENTIONS OF WHICH THE PHILIPPINES IS A PARTY.

132. The fundamental duty of the Philippines, and the imperative need, to protect human rights and advance the laws of humanity, or international humanitarian law, both under treaty law and customary international law, especially the rights to life and dignity, underscore the transcendental importance of the instant petition to the Philippines and its people.

133. The Philippines is required under domestic law and under international law to undertake the protection of basic human rights, especially the rights to life, to dignity, and to be provided with adequate remedies for the violation of fundamental rights.

134. The international obligation of the Philippines to protect human rights stems from conventional law, through the myriad human rights treaties which the Philippines has ratified or acceded to. In particular, the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Charter – as interpreted by the subsequent practice of State parties – impose upon the Philippines the obligation to promote and protect human rights.

135. Furthermore, the existence of such an obligation under customary international law is evidenced by the widespread acceptance of numerous international conventions and instruments stating this hallowed principle, it being settled international doctrine that conventions that nations have entered into evidence the existence of a customary norm.

136. This non-derogable duty under custom and convention is an obligation erga omnes, since it implicates the interest of all nations in the protection of human rights and fundamental freedoms. If the Philippines violates this duty, all the nations would be entitled to invoke the liability of the Philippines for this breach.

137. The acts committed by Japanese soldiers against Petitioners have long been treated under customary law as serious breaches of international humanitarian law, which is distinct and separate from the regime of the international human rights law. Customary norms under international law are binding upon all civilized nations, especially in this case were the acts committed are shocking to the conscience of humanity.

138. In saying that the claims Petitioners wishes the Philippines to bring against the State of Japan are, under our system of government, the prerogative of the Chief Executive, this Honorable Court has unfortunately read the foreign policy powers of the Office of the President in isolation from the rest of the constitutional protections that expressly textualize international human rights and humanitarian law standards, as well as disregarded a distinguished jurisprudential history upholding the same standards.

139. Indeed, the presidential foreign policy prerogatives have been made subject to obligations to promote international humanitarian law and international human rights law as incorporated into the laws of the land through the Incorporation Clause.

140. We argue that the obligation – the duty – of the Philippine state to afford protection and legal remedy to its citizens who have fallen victim to mass atrocities is first and foremost, a constitutional duty because the 1987 Charter has in fact, constitutionalized it.

141. To appreciate this, this Honorable Court must re-visit the texts of two landmark cases in Philippine constituional history : Yamashita v. Styer and Kuroda v. Jalandoni, which have been noted for their prescient articulation of the import of the laws of humanity and the fight against impunity to any country claiming to be a member of the “civilized community of nations.”

142. As early as these two cases, this Honorable Court had ruled that we are bound to observe the laws of war and the laws of humanity as embodiments of customary norms that every member of the community of nations must observe.

143. Petitioners bring this Honorable Court’s attention to its declaration in the Yamashita case that the Military Commission may hear the charges leveled against him for having permitted members of his command “to commit brutal atrocities and other high crimes against the people of the United States and of its allies and dependencies, particularly the Philippines,” crimes and atrocities which in the bills of particulars, are described as massacre and extermination of thousand and thousands of unarmed noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young girls, as well as devastation and destruction of public, or private, and religious property for no other motive than pillage and hatred.

144. For the Court “these are offenses against the laws of the war as described in paragraph 347 of the Rules of Land Warfare” – a pronouncement which expressly recognized rape as an international crime under International Humanitarian Law, a legal regime antedating International Humanitarian Law by centuries. Borrowing from an American precedent, the Court held:

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status rights and duties and of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.

145. Meanwhile, Shigenori Kuroda, Commanding General of the Japanese Imperial Forces in the Philippines from 1943-1944, was charged before a Military Commission established by the Armed Forces Chief of Staff with having disregarded and failed to discharge his duties under international law as commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against civilians and prisoners of war, in violation of the laws and customs of war.

146. His lawyers, in defense, argued in the Kuroda case that Executive Order No. 68, which established the National War Crimes Office, was illegal because it violated both statute and constitutional law, “to say nothing of the fact [that] the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of ‘crimes’ not based on law, national and international.” But the ponente, Justice Moran, declared :
This Court holds that this order is valid and constitutional. Article 2 of [the 1935] Constitution provides in its section 3, that –

The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.

In accordance with the generally accepted principles of international law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of the Constitution

147. According to Chief Justice Moran, even if, as the defense lawyers argued, the Philippines had not acceded to the Hague Convention on Rules and Regulations covering Land Warfare, these principles in fact formed part of the law of our nation, yes, even if the Philippines was not a signatory to the Convention by virtue of the Incorporation Clause. The ponente wrote:

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioners for acts committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by two belligerent nations, United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be signatory.

148. That is why the acts committed by the Japanese soldiers against Petitioners are called “international crimes.” The nomenclature points to the fact that these being violations of the laws of war and the laws of humanity, the violators may be prosecuted in any jurisdiction on earth under the principle of universal jurisdiction; and even if, in Kuroda, the Philippine was not a party to the Hague and Geneva Conventions, the Philippines had the obligation to prosecute the Japanese soldiers because our constitution recognizes that these conventions merely embody rules and principles of international law long held to be binding upon the community of nations under customary international law.

149. Indeed, such a commitment to the Laws of war and the Laws of humanity is now well-enshrined in the fundamental law of the land: Article II, Section 2 of the Constitution provides that “[t]he Philippines…adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

150. The history of what is now known as the Incorporation Clause shows this. Article 2, Section 2 of the 1987 Charter carries exactly the same phraseology as that of the 1973 Constitution; The 1935 Constitution bears a nearly-identical phraseology.

151. Dean Magallona argues that without the Incorporation Clause, the status and applicability of the generally accepted principles of international law within Philippine jurisdiction will be uncertain, adding that the clause may imply that general international law only forms part of Philippine law insofar as they are expressly adopted. Accordingly, unless so incorporated, general norms of international law may acquire no enforceability in the Philippine legal system.”

152. In fact, the Supreme Court, in at least, two cases has held that even without the Incorporation Clause, international law is automatically deemed part of Philippine law as a consequence of Statehood, decisions that the good Dean takes the pains to declare as a mistaken position. It must be said though that in fact, there is also at least one case, Agustin v. Edu, where the Supreme Court held that a treaty law, though yet to be ratified by the Philippines, was part of the law of the land through the Incorporation Clause.

153. The Philippines, by virtue of the Incorporation Clause, is bound to abide with the erga omnes obligations arising from the jus cogens norms embodied in the Laws of War and the Laws of Humanity – including the principle of the non-prescription of the action against war crimes..

154. The crimes committed against the Petitioners in this instant case precisely are crimes that are proscribed under international human rights law and international humanitarian law. Their being violations of jus cogens norms are beyond question. The eminent publicist on international criminal law Bassiouni writes thus:

The legal literature discloses that the following international crimes are jus cogens: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture. Sufficient legal basis exists to reach the conclusion that all these crimes are part of jus cogens. This legal basis consists of the following: (1) international pronouncements, or what can be called international opinio juris, reflecting the recognition that these crimes are deemed part of general customary law; (2) language in preambles or other provision of treaties applicable to these crimes which indicates these crimes’ higher status in international law; (3) the large number of states which have ratified treaties related to these crimes; and (4). The ad hoc international investigations and prosecutions of these crimes.

155. Bassiouni writes that these erga omnes obligations include, among other things:
The duty to prosecute or extradite, the non-applicability of statutes of limitations for such crimes, the non-applicability of any immunities up to and including Heads of State, the non-applicability of the defense of ‘obedience to superior orders’ (save as mitigation of sentence), the universal application of these obligations whether in time of peace or war, their non-derogation under ‘states of emergency,” and universal jurisdiction over perpetrators of such crimes.

156. Thus, by way of the Incorporation Clause in the Constitution, the presidential foreign policy prerogatives have been proscribed as to recognize the compelling nature of certain international legal norms that are now being claimed as applicable to their case by herein Petitioners – norms subject to erga omnes obligations, or obligations owed to the international community as a whole.

157. Meanwhile, there is also the matter of the Philippines’ obligations erga omnes partes – its obligations as a party to multi-lateral international human rights and humanitarian law treaties all penalizing war crimes and crimes against humanity. The refusal by the Chief Executive to abide with these treaty obligations pertaining to jus cogens norms is grave abuse of discretion amounting to an excess or lack of jurisdiction subject to the expanded certiorari powers of this Honorable Court.

158. Thus, invocation by this Honorable Court of American jurisprudence on the political question doctrine is misplaced. The constitutional backdrop to these American cases is markedly different from the Philippine experience; these cases are therefore irrelevant and unpersuasive.

159. Thus, the Chief Executive has the constitutional and legal duty to afford redress to the victims of the Comfort Women system set in place by the Japanese government in the Philippines during World War II. Petitioners respectfully submit that in effect, what the Court is legitimizing by affirming the political question doctrine in this case is the denial of justice by the President to the victims of atrocities by the Japanese in World War II.

160. Thus, Tañada v. Cuenco belongs to a time from before the grant of expanded certiorari powers of the Supreme Court under the 1987 Charter; it is properly speaking, an historical curiosity, for under the post-Marcos constitution, the political question doctrine has seen a “diminished role” as a result of the adoption of Art. III, Sec. 1 and Art. VII, Sec. 18 of the Constitution. Chief Justice Puno, concurring in the result in this judgment, wrote in his concurring opinion – also in the result – in the case of IBP v. Zamora in 2000, or nearly half a century after Tañada v. Cuenco:
It is now history that the improper reliance by the Court on the political question doctrine eroded the people’s faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA.

161. To cite Tañada v. Cuenco’s pronouncement on the political question doctrine as if it remains the unmoved bedrock principle in constitutional adjudication where the principal issue concerns the foreign policy dictat of the president is to ignore the developments that have taken place in both constitutional design and interpretation in the last half a century in Philippine constitutional history;
162. Thus, US v. Curtiss-Wright Export Corp. is only seminal in the American context, where the Constitution could only recognize a very limited certiorari power for the American Supreme Court, (not to mention that it does not have an Incorporation Clause found in the Philippine Constitution that, as will be shown in the succeeding sections, places presidential prerogatives within an “universalist” framework anchored on the recognition of international legal norms ).

163. As a young Filipino scholar of the interface of international law and constitutional law –Diane A. Desierto –would put it, the 1987 Charter:

….strongly entrenches democratic participation, individual autonomy guarantees, and executive accountability in the public order — a decidedly ‘legal’ vigilance fueled by the experience of centuries of colonialism and recent decades of martial law rule. The 1987 Constitution, the longest to date with eighteen Articles and three hundred and six sections, already institutionalizes many universalist norms and conceptions. Apart from overt textualization, however, the Constitutional framers still provided for further entry of universalist norms in the Philippine legal system through the traditional mode of treaty-making, and more controversially, through the Incorporation Clause, where “generally accepted principles of international law form part of the law of the land”. It is this latter provision that has been the mechanism by which customary international law and general principles of international law have been invoked (and with recent frequency) as actionable norms before Philippine courts.

164. Bayan v. Executive Secretary and Pimentel v. Executive Secretary – purported precedents for the presidential prerogative in foreign relations – are inapplicable; for one, they only tangentially, if at all, tackle the principal issue in the instant case, in particular, the matter of gross violations of human rights and humanitarian law. The former concerns the RP-US Visiting Forces Agreement while the latter – because of the refusal of this Honorable Court to tackle the core values embodied by the International Criminal Court established by the Rome Statute – framed the principal issue in terms of who has the power of treaty ratification under our system of government.

IV. INDEED, THIS HONORABLE COURT HAS CONFUSED DIPLOMATIC PROTECTION WITH THE FUNDAMENTAL RESPONSIBILITY OF STATES TO PROTECT THE HUMAN RIGHTS OF ITS CITIZENS – ESPECIALLY WHERE THE RIGHTS ASSERTED ARE SUBJECT OF ERGA OMNES OBLIGATIONS AND PERTAIN TO JUS COGENS NORMS.

165. Barcelona Traction is a double-edged sword. It is a leading authority in international law for the principle that the corporation has a legal personality separate and distinct from its shareholders, so that under the nationality principle, the nationality of share holders is not determinative of the issue of which state may invoke diplomatic protection in its favor but the forum where it was registered; however its pronouncement on diplomatic protection as the state’s – that is, the Executive Department’s – exclusive discretionary domain is set against the backdrop of its most important and oft-quoted holding, though it is but in the nature of an obiter dictum; that is; the idea of erga omnes obligations owed by any state to the international community as a whole.

166. Precisely because these are obligations owed by any state to the international community, these cannot be a discretionary matter. These cannot be of an obligatory nature if subject to a state’s discretion. Discretion and obligation are two conflicting worlds – like matter as against anti-matter.

167. The case clearly makes that distinction between an obligation owed to the international community and one that pertains merely to bilateral state relations:

When a State admits into its territory foreign investments or foreign national, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment afforded to them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes

168. Thus there is a class of claims that properly belongs to the domain of diplomatic protection and that only; but where the class of claims pertains to erga omnes obligations (and not necessarily jus cogens norms as well) – as in the case of mass atrocities committed against a state’s citizens – such claims cease to be the exclusive concern of the traditional doctrine of discretionary diplomatic protection. In fact, under the doctrine of erga omnes obligations, as the injuries suffered are a legal interest of all states, any state may seek redress for the injuries suffered.

169. The language of Barcelona Traction has found its way into the Rome Statute, which speaks of “the most serious crimes of concern to the international community as a whole” – an inclusive language that is as well used in Art. 48 (1)(b) of the Draft Articles on State Responsibility ; that is, “[a]ny State other than the injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…the obligation breached is owed to the international community as a whole.” Moreover, the Commentaries to the Draft Articles underscore the continuity between Art. 48 and the Court’s ruling in the Barcelona Traction case, saying the Draft Articles recognizes the “essential distinction” between obligations owed to particular States and those owed to the international community as a whole.

170. It is an obligation owed by the State of Japan not just to the Philippines but to the international community as a whole.

171. The entirety of Art. 48 of the Draft Articles of State Responsibility reads thus:
Article 48. Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility y an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

172. Of particular relevance in this discussion is Art. 48(1)(b), which deals with collective obligation of States. As a recent landmark study on the use of diplomatic protection as a human rights mechanism would put it:

Yet the distinction between invocation of responsibility by means of diplomatic protection and such invocation erga omnes is not to be found in the nature of the injury inflicted upon the individuals concerned. As has been demonstrated claims erga omnes are inherently direct claims, since the obligation erga omnes is owed to the community as a whole, including the claimant state. A state invoking responsibility under Article 48(1)(b) is thus claiming its own right. This is markedly different from the exercise of diplomatic protection, where states, while relying on their own right to exercise diplomatic protection, are not claiming their own rights but rights owed to their nationals. States invoking responsibility erga omnes have legal standing because they have a direct legal interest in compliance with the obligations erga omnes. States exercising diplomatic protection also have a legal interest, but it is indirect because it is conditioned upon the bond of nationality. Considering these differences, it is clear that invocation under Article 48(1)(b) is must be distinguished from invocation by means of diplomatic protection. Accordingly, the rules applicable to diplomatic protection do not apply to such claims.

173. The argument that there is no established “duty of diplomatic protection” under international law is irrelevant in the particular case of atrocity crimes, where there is a line of contemporary authority that already recognizes the every State’s duty to afford protection to victims of these crimes. Its holding ignores developments since World II on the law of State Responsibility to protect their nationals and prevent impunity for mass atrocity crimes.

The claims raised by Petitioners in this case are not simple private ones which are the usual subject of diplomatic protection, as in the Mavrommatis Palestine Concessions Case cited by the Judgment; these pertain to crimes that are shocking to the conscience of humanity and are every civilized nation’s duty to prevent and prosecute.

174. Thus, sovereignty must yield to obligations to human rights and laws of humanity. We must distinguish between foreign policy and international law. Yes, the Chief Executive is the chief architect of Philippine foreign policy, but he cannot veto what for all intents and purposes, has, for so long, been binding obligations, or erga omnes obligations, under customary international law (or the realm of general international law).

175. The President has the constitutional and legal duty to afford access to redress for the victims but there is nothing in the record to show that the Executive has performed this constitutional and legal duty. With due respect, Petitioners say that it was erroneous for this Honorable Court to conclude that espousal of claims is simply a question of Executive prerogative, when the Executive has not shown how and by what means it had afforded redress to the victims. It has not aggressively sought any official reparation scheme on behalf of the victims, much less an official apology, from the State.

176. Nowhere in the submissions of the Government through the Office of the Solicitor General were the Chief Executive able to point to any process, claims procedure, or any official action to obtain any form of restitution for the Petitions, whether through compensation, satisfaction (apology), guarantees of non-repetition, etc.

177. Instead, the Government assumed that it could “waive” this duty under the San Francisco Peace Treaty, which, as shown in the next subsection, is not and could not be a valid subject of governmental waiver.

178. Indeed, if and when the Philippines invokes it to espouse the claims of the Filipino comfort women against Japan, it does so on behalf of the international community as a whole, following para. 33 of the Barcelona Traction case ; in the contemplation of general international law, the injury was sustained directly by the international community as a whole; its legal interest here would consist of the prohibitions established by jus cogens norms against impunity:

A claim under Article 48, even if it concerns individual injury and not direct injury to a state, is a direct claim, since the claimant state as a member of the international community has a direct legal interest in compliance with the relevant rule by virtue of its membership of the international community and not, as in diplomatic protection, through the bond of nationality.

179. The Philippines’ own interests in the said case can be said to overlap with that of the international community as a whole. When the Philippine does so, it is not in the nature of a traditional espousal of a diplomatic claim. It is both to its own interests and the interest of the international community as a whole to espouse the claims of the comfort women.

180. Vermeer-Künzli illustrates this point in relation to the jus cogens prohibition on torture:

Even if states invoking responsibility for a breach of a peremptory norm may ‘act in the collective interest’ , it is not necessary to accurately define the ‘collective’ for the claim to be admissible. It is sufficient that states invoking the responsibility for an obligation erga omnes are entitled to do so because the obligation is owed to the international community including the invoking state. That is to say a state invoking responsibility for an obligation erga omnes is claiming its own right, a right that it shares with other states. It is thus a kind of invocation of responsibility that is rightly distinguished from diplomatic protection, a distinction inherent in the erga omnes nature of such invocation. Although this is sometimes a subtle distinction, it may be clarified by the example of the prohibition on torture. A violation of this prohibition may be claimed either by exercising diplomatic protection on behalf of a national or erga omnes. In the former case, the rights that are claimed are rights that are not primarily owed to the claimant state. Although the claimant state may have agreed with the defendant state not to practice torture, the obligation not to subject individuals to torture is owed to the individual (foreign) nationals and this is the right that is claimed. It is an indirect claim and the customary rules for such a claim apply. If the claim is brought erga omnes, the obligation is owed to the international community, including the claimant state, which makes it a direct claim.

181. In any case, even Art. 19 of the Draft Articles on Diplomatic Protection, while it does not express the mandatory nature of diplomatic protection in regard to cases involving peremptory norms, provided as recommended practice that states should ‘[g]ive due consideration to the possibility of exercising diplomatic protection, especially when significant injury has occurred.”

182. Vermeer-Künzli argues that the accompanying Commentary to the text of the Draft Articles on Diplomatic Protection actually shows that what the Commission had in mind were serious breaches of fundamental human rights norms, if not breaches of peremptory norm.

183. In fact, the Commentaries to the Draft Articles on Diplomatic Protection notes that despite the discretionary nature of the State’s right to exercise diplomatic protection on behalf of its nationals,

….there is growing support for the view that there is some obligation, however imperfect, of States, either under international law or national law, to protect their nationals abroad when they are subjected to significant human rights violations. The Constitutions of many States recognize the right of the individual to receive diplomatic protection for injuries suffered abroad, which must carry with it the corresponding duty of the State to exercise protection. Moreover, a number of national court decisions indicate that although a State has a discretion whether to exercise diplomatic protection or not, there is an obligation on that State, subject to judicial review, to do something to assist its nationals, which may include an obligation to give due consideration to the possibility of exercising diplomatic protection.

184. In discussing the ILC’s recommendation that States should give consideration to the possibility of exercising diplomatic protection on behalf of a national who suffers significant injury, the Commentaries point out that the protection of human beings by means of international law is today one of the principal goals of the international legal order, citing the 2005 World Summit Outcome resolution adopted by the General Assembly on 24 October 2005.

185. As the 2005 World Summit on The Responsibility to Protect would put it (paras. 138-139):

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out

186. On this account, and from the point of view of Philippine practice, the failure of the government to espouse the Petitioners’ claims may indeed be open to a certiorari action on the ground of grave abuse of discretion as such failure is tantamount to a denial of justice, under the 1987 Constitution and the relevant international conventions of which the Philippines is a party..

187. Indeed, under the 1987 Constitution, Philippine courts have been granted an expansive certiorari power to check the abuses of government. As Justice Puno has stressed in his dissenting and concurring opinion in the case of Arroyo v. De Venecia:

…In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts “x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-à- vis the Executive and the Legislative departments of government.

…..

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.

….

The provision defining judicial power as including the ‘duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government’ constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis-à-vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government.

….

In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.

188. In the instant case, the Petitioners raise many constitutional issues against certain acts of the President made with or expressed through Presidential alter egos in the Cabinet – issues that are also of transcendental, novel, serious and precedent-setting nature. Indeed, the President wields awesome powers as Chief Executive. Under our present system of government, executive power is vested in the President.

189. The acts committed by the concerned offices of the Executive denying or disregarding the claims for reparation of Petitioners are an exercise of Executive Prerogative subject to the certiorari powers of this Honorable Court. The members of the Cabinet and other executive officials are merely alter egos through the Doctrine of Qualified Political Agency. In that capacity, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed.

190. In the words of Justice Laurel:

After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.

191. The Petition alleges that the Executive has transgressed constitutional bounds in its refusal to espouse the claims of Petitioners against the State of Japan in accordance with international obligations contained both in treaty law –erga omnes partes obligations – and customary law – erga omnes obligations under general international law, and which obligations have been constitutionalized in the 1987 Charter.

192. In the case of Secretary of National Defense, et al., v. Raymond Manalo and Reynaldo Manalo, this Honorable Court, speaking through Chief Justice Puno, recognizes the duty of the Courts to ensure that the constitutional rights of citizens are protected.

193. The case in question is the very first to be decided by the Philippine Supreme Court under the Rules on the privilege of the Writ of Amparo. The ponencia traced the development of the legal doctrine to Latin America where the writ

has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental right.

194. According to Chief Justice Puno the writ as it evolved in the Latin American experience began as a protection against acts or omissions of public authorities in violation of constitutional rights but subsequently became an overarching protective mechanism addressing a slew of abuses: (1) Amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of administrative actions; and (5) Amparo agrario for the protection of peasants’ rights derived from the agrarian reform process.

195. What he would say next is of high significance to the present controversy:

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.

196. This Honorable Court has already acknowledged that the fundamental rights of Petitioners had been violated; it cannot then say all that it can offer to them are words of sympathy. This Honorable Court has a duty to do justice – to protect the constitutional rights of citizens. It cannot do so by merely commiserating with the sufferings of the Petitioners without providing them with adequate legal remedies that, it has already acknowledged, are available under the constitution. Its contention that it can only sympathize with Petitioners for their shame and suffering because the legal remedy they seek is not available runs counter to its own pronouncements on its expanded certiorari powers, most recently expounded upon in the Manalo Brothers case.

197. Such is the Amparo protection found in Art. VII, § I of the 1987 Charter, which empowers the courts “”to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” According to the Manalo Brothers case, the Grave Abuse Clause, “accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrative.”

198. Contrary to what this Honorable Court contends, the Asian Women’s Fund is not an official act or creature of the State of Japan. It is a private fund and is therefore, yet another scheme to evade historical responsibility for the wrongs suffered by the Comfort Women. The fund channels money from private sources – from donations given by various groups. It is not an official fund created out of the public coffers of the State of Japan as reparations for what the comfort women suffered in the hands of the Japanese Imperial Army. In fact this Honorable Court has not denied this fact. There is nothing in its assailed Judgment to establish that the AWF sources its founds from public coffers.

199. By disregarding, patently violating, and refusing to act in accordance with, the clear mandate of the Constitution and Philippine international obligations under the relevant international human rights and international humanitarian law, the Executive Department has clearly acted without and/or in excess of their jurisdiction.

200. Petitioners are mindful that Rule 65, Section 4 of the Rules of Court, sets a 60-day period “from notice of the judgment, order, or resolution” within which to file the instant petition. This Honorable Court has generally held this period to be “inextendible”, on the rationale that “[t]he period was specifically set to avoid any unreasonable delay that would violate the constitutional rights of parties to a speedy disposition of their case”.

201. However, it should be stressed that the judicial policy underlying the sixty-day reglementary period to file petitions under Rule 65 is not sacrosanct, particularly when weighed against the historical claims raised by the Petitioners founded on jus cogens norms and erga omnes obligations . Besides, it cannot be said that there has been a violation of the “right to speedy disposition of the case”. The right to a speedy disposition of a case “is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried.”

202. Since there has been no actual violation of the right to speedy disposition of a case, the purpose of the rigid implementation of sixty-day reglementary period under Rule 65, Section 4 of the Rules of Court does not exist.

203. Juxtaposing the absence of the rationale for the reglementary period with the Respondents’ ongoing breaches of Petitioners’ fundamental rights inflicting grave and direct injury upon them, there is likewise a greater impetus for this Honorable Court to exercise its discretion to liberally give due course to the instant petition and resolve the same on the merits. This Honorable Court has not been precluded from taking cognizance of petitions involving issues of “transcendental significance to the people”, and may thus “brush aside technicalities of procedure” where the “issues raised are of paramount importance to the public”.

204. As a common-law remedy, the writ of certiorari was an original writ issued out of the chancery or the King’s bench, directed in the King’s name to the judges or officers of an inferior court, commanding them to return the record of a cause pending before them, so that the party might review the proceedings. Contemporary practice, in general, has retained the original intent of the writ, which, under our Revised Rules of Court of 1997, is a special civil action.

205. Thus, as Sec. 1 of Rule 65 states, any aggrieved party may file such a verified petition “[w]hen any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law…”

206. Indeed, by its very definition in the Rules of Court, the mode of certiorari applies to the exercise of judicial or quasi-judicial functions. The function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess of jurisdiction.

Quasi-judicial is a term applied to the action or discretion of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official function, and to exercise discretion of a judicial nature. To be precise, quasi-judicial adjudication denotes a determination of rights, privileges and duties resulting in a decision or order which applies to a specific situation. This does not cover rules and regulations of general applicability issued by an administrative body to implement its purely administrative policies and functions

207. Over time however – and especially in the wake of the country’s experience under Martial Law – the Courts, following the ratification of a new constitution, have expanded their understanding of their certiorari powers, venturing to acquire jurisdiction in cases involving a constitutional question attacked by Petitioners as an exercise of grave abuse of discretion amounting to lack or excess of jurisdiction, even if the question itself does not involve a tribunal or an officer exercising a quasi-judicial function.

208. In fact, more recently the Supreme Court has ruled that there is grave abuse of discretion when an act is done contrary to the Constitution, to law or to jurisprudence, which act is subject to a writ of certiorari.

209. The landmark case of Francisco et al, v. De Venecia, et al., explains this power of the Courts to pass upon the constitutionality of policy – especially that expressed in the exercise of grave abuse of discretion amounting to lack or excess of jurisdiction.

210. In this case, the ponente, Justice Carpio-Morales, notes that the major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the American Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, “is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.”

211. Justice Carpio-Morales locates the roots of this “expanded certiorari jurisdiction” of Philippine courts in the deliberations of the 1986 Constitutional Commission, especially in the sponsorship speech of Chief Justice Roberto Concepcion, which Petitioners quote at length:

…The first section starts with a sentence copied from former Constitutions.

It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: “Well, since it is political, we have no authority to pass upon it.” The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. . . . [italics supplied]

212. It is of double significance that in Francisco et al., v. De Venecia et al., – the case that resolved the propriety of the impeachment complaint against Chief Justice Davide – the High Court brushed aside technicalities in the name of the transcendental and constitutional importance of the issues involved.

213. In fact, the lead petitions and many other petitions consolidated in the case adopted the special civil action of certiorari and prohibition under Rule 65 as a remedy to question the acts of the House of Representative relative to the impeachment of a sitting Chief Justice of the Supreme Court.

214. Indeed, it can well be said that there is greater support for the propriety of the remedy used in the instant case than in the Francisco case because what is being assailed are the acts not of a legislative body but of the Chief Executive and his alter egos.

215. In dismissing the Petition, this Honorable Court is affirming the denial of justice to the victims of the Comfort Women System of the Japanese Imperial Army committed by the Executive Department, all in violation of the Philippine State’s international law and constitutional law obligations..

V. THE FILIPINO COMFORT WOMEN’S CLAIMS COULD NOT HAVE BEEN A LEGAL SUBJECT OF THE TREATY OF PEACE AS THESE ARE NOT PRIVATE CLAIMS BUT ARE IN FACT CLAIMS ARISING FROM WAR CRIMES AND JUS COGENS NORMS SUBJECT TO ERGA OMNES OBLIGATIONS UNDER INTERNATIONAL LAW. AS SUCH, THE CLAIMS RAISED BY PETITIONERS AGAINST THE STATE OF JAPAN IS AS WELL THE INTEREST OF THE INTERNATIONAL COMMUNITY AS A WHOLE UNDER THE LAW OF STATE RESPONSIBILITY, NOT TO MENTION THAT SUCH WAIVER IS PROHIBITED UNDER PHILIPPINE LAW.

216. In first place, the intent of the Parties, as expressed in its Preamble, recognizes that Japan has a human rights commitment that trumps the idea that the Treaty’s Waiver Clause wiped out the claims of victims of the Japanese Imperial Army’s Comfort Women System.

217. As Dean Magallona argues, “the waiver clause of the Treaty cannot be so interpreted as to defeat the human rights commitment of Japan; in particular, it cannot have the effect of avoiding the claims of the comfort women against Japan for responsibility arising from the breach of international obligations.”

218. Following the Separate Opinion of Judge Dillard in the South-West Africa case, the Waiver Clause in the San Francisco Treaty must be read along with the very Preamble of the Treaty, which expresses the intention of the State Parties. Along this line, by signing the Peace Treaty, Japan had in fact, committed itself to respect human rights and fundamental freedoms. The Preamble states intention of the parties,

a. to conform to the principles of the UN Charter “in all circumstances”;

b. to strive to realize the objectives of the Universal Declaration of Human Rights; and

c. to create internal conditions (in Japan) “as defined in Articles 55 and 56 of the Charter of the United Nations.”

219. According to Dean Magallona, under Article 55, States Parties are to take joint and separate action in cooperation with the UN, for the “universal respect for, and observance of, human rights and fundamental freedoms for all without discrimination as race, sex, language, or religion” that Article 56 pursues.

220. The rights on which the Petitioners’ claims are founded pertain to no ordinary rights. These pertain to elementary considerations of humanity recognized by both international human rights and international humanitarian laws and are not subject to prescription.

221. The acts committed by members of the Japanese Imperial Army against Petitioners are violations of jus cogens norms – of customary norms long held to be binding upon all civilized nations.

222. Indeed, the 1969 Vienna Convention on the Law of Treaties is only a codification of long-held principles in international law, namely jus cogens norms; Put in another way, the Convention is but a restatement of long standing and long held principles of international law that in fact, co-exist side by side with and independently of treaty law, as the decisions of the ICJ in the North Sea Continental Shelf Cases and the Nicaragua v. US case so clearly import.

223. Thus, even if at the time of the conclusion of the San Francisco Treaty of Peace, the VCLT was not yet in force, the norms which it codified remain binding as part and parcel of a separate legal regime under general international law.

224. To hold so otherwise is to put across the argument that the actions of the Japanese military during the Second World War were not prohibited in treaty or customary law at the time they were committed – an argument also put forward by defendants in the Nuremberg, Tokyo, Kuroda and Yamashita trials.

225. Yet, as the UN Commission would put it, “the Japanese government’s claims that the actions of the Japanese military during the Second World War were not prohibited during the time period in which the offences were committed because the international crimes of rape and enslavement were not clearly prohibited as customary norms during the Second World War are easily refuted. Similar arguments were unpersuasive 50 years ago when they were first raised at the [Nuremberg] trials and…they remain unpersuasive today.”

226. Thus, the invalidity of the Waiver Clause in question is not only a concern of the parties to the Peace Treaty but of humanity in general; For what is involved are violation of the Laws of War and the Laws of Humanity;

227. Indeed, no State can waive the liability of another state for crimes against humanity. On this basis, so said the Women’s International War Crimes Tribunal (hereinafter, Tribunal), the Japanese government cannot evade liability for violations of crimes against humanity by invoking the terms of the Peace Treaty because the waiver is void on the ground that the Allies had no power to waive the liability of Japan for crimes against humanity.

228. In addition, from the point of view of the UN Commission of Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter, UN Commission), equity dictates that the Treaty of Peace provisions on settlement of claims be rendered void for the following reasons:

(a) Japan’s direct involvement in the establishment of the rape camps was concealed when the treaties were written, a crucial fact that must now prohibit on equity grounds any attempt by Japan to rely on these treaties to avoid liability;

(b) Plain language of the treaty indicate that it was not intended to foreclose claims for compensation by individuals for harms done by the Japanese military in violation of human rights or humanitarian law.

(c) It is argued that at the time these and other post-war treaties were forged, the Japanese government hid the extent of the Japanese military’s involvement in the horrifying treatment of comfort women. “Although there was clearly ample knowledge within Korea, the Philippines, China and Indonesia that women and girls had been enslaved and raped during the war, the systemic involvement of the Japanese Imperial Army was concealed by Japan following the war. Private ‘entrepreneurs, rather than the Japanese military, were suspected and often blamed for the emergence of rape centers,” so said the UN Commission. The same objections can very well be said against the Reparations Agreement between the Philippines and Japan, which made no mention at all of the claims of the comfort women against the Japanese government.

(d) …[T]he plain language of article 14(b) of the 1951 Peace Treaty waives all reparations claims and other claims of the Allied powers and their nationals arising out of the actions taken by Japan and its nationals during the war…By distinguishing between the claims for “reparations” and “other claims”, this language clearly indicates that the waiver does not apply to compensation of the Allied Powers’ nationals. The only reparations contemplated by the waiver are those “other” than reparations. Thus the claims for compensation by the former “comfort women” are not barred by the waiver at all because they do not fall within the claims discussed in the Treaty.

229. In fact, the Philippines itself made a reservation against any rigid interpretation of the Waiver Clause, as can be gleaned from the statement of the then Foreign Affairs Secretary of the Philippines, Carlos P. Romulo, at the San Francisco Conference on September 7, 1951:

If Article 14(a) is to be interpreted as an inflexible restriction on the form of reparations between Japan and the Philippines, then I would be obliged to declare that the Philippine Government will make the following reservation:
The right of the Government of the Republic of the Philippines to negotiate and mutually agree with the Government of Japan on the kinds and forms of reparations due the former from the latter and the manner of their payment or delivery is hereby reserved, and provision of the present treaty to the contrary notwithstanding…

230. Moreover, when the Philippines signed the Treaty of Peace, the New Civil Code (NCC) was already in effect. Art. 6 of Republic Act 386, otherwise known as “An Act to Ordain and Institute the Civil Code of the Philippines,” provided that “Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good custom, or prejudicial to a third person with a right recognized by law.”

231. Too, Art. 17 of the NCC, in particular in the second paragraph, provides that “Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.”

232. The Treaty of Peace is one such convention agreed upon in a foreign country by the Philippines. Thus, even without the reservations made by the Philippines to the Treaty, under our Civil Code, the waiver does not have the effect of binding law; as far as Philippine law is concerned, it is repugnant to public order, public policy and good customs.

233. Clearly, the Philippine government could not have waived the rights of Petitioners to a just claim against the state of Japan when it signed the Treaty of Peace; such waiver being contrary to law, the notion of an international public order founded on the rule of law and the principles of human rights and prejudicial to the rights of the Petitioners.

234. F. Kalshoven, in an opinion quoted with favor by the Tribunal, also argues that the Peace Treaty, because it provides for lump-sum reparations, is a political, rather than a legal settlement:
Lump-sum agreements are inter-State agreements; they are concluded for political reasons and are not, or at most only very partially, based on the damage and injury suffered by individual persons of the nationality of the State that receives money under the agreement. Often, the individual damage and injury are unknown at the time of the conclusion of the agreement, and therefore, simply cannot have been taken into account in ‘calculating’ the payment under the agreement.

235. The judgment of the Tribunal, elucidating on this point, said the United States has expressly admitted this in an amicus curiae brief filed recently in the United States Federal Court hearing the case of Comfort Women from the Philippines, China, Taiwan and South Korea. In the brief, the United States argued against recognizing individual claims in this way:

The Treaty was considered as part of a package….relating to the Pacific region, reflecting the United States’ view of the Treaty as an integral part of its political and foreign relations goals in that region.

The Allies’ intent was to effect as complete and lasting peace with Japan as possible by closing the door on litigation of war-related claims. This policy decision was made in order to allow Japan as a nation to rebuild its economy and become a stable force and strong ally in Asia….To that end, the United States actively facilitated and encouraged Japan’s efforts to enter into peace treaties and/or claims settlement agreement with non-signatory countries such as China, Burma and Indonesia.

236. Against this stance, the Tribunal said:

This is a transparent admission of the political nature of this effort to extinguish individual claims for war-related injury. It is also an effective warning of the danger of permitting a geopolitical negotiating process to extinguish the claims of the injured. Today, it is often said that there can be “no peace without justice.” The long and courteous battle of reparations waged by the aging survivors of the comfort system attest to the necessity (of establishing) accountability (for) survivors to have peace. It also makes clear the crucial importance of the principle we affirm here: that as to crimes against humanity, the bargains of states cannot extinguish against the claims of injured people.

237. Hence, the Waiver Clause must be reconciled with the fundamental considerations respecting human rights which form part of the context of the Treaty as articulated in its Preamble. If both prove to be irreconcilable, under Article 103 of the UN Charter, we arrive at the interpretation that the human rights obligations under the UN Charter is the context of the Peace Treaty, indeed, its primary point of reference, over and above the obligations that the Waiver Clause demands of the signatories.

238. Besides, in signing the Peace Treaty, Japan and the Allied Powers themselves likewise intended to comply with Articles 55 and 53 of the UN Charter.

239. There too is another aspect – gender, that this Honorable Court has not considered. The Tribunal thus noted:

We…find persuasive the arguments…regarding the inherent gender bias underlying the Peace Treaties. We note that women, either as individuals or as a group, did not have an equal voice or equal status to men at the time of the conclusion of the Peace Treaties with the direct consequence that the issues of military sexual slavery and rape were left unaddressed at that time and formed no part of the background to the negotiations and ultimate resolution of the Peace Treaties. The tribunal considers that such gender blindness in international processes contribute to the continuing culture of impunity for crimes perpetrated against women in armed conflict.

240. The high order nature of jus cogens norms and erga omnes obligations trump the provisions of treaty. In fact, where treaty law conflicts with jus cogens and erga omnes obligations, the former must give way; precisely Petitioners argue that the Philippines and Japan itself are subject to the demands of erga omnes obligations. The principle of pacta sunt servanda cannot prevail over jus cogens norms and erga omnes obligations. Indeed, only a distorted understanding of the principle can lead one to arrive at a conclusion to the contrary.

PRAYER

WHEREFORE, premises considered, Petitioners respectfully pray that this Honorable Court reconsider its Judgment of April 28, 2010 and instead:

(a) DECLARE the rapes, sexual slavery, torture and other forms of sexual violence committed against the Filipina ‘comfort women’ as crimes against humanity and war crimes under customary international law;

(b) DECLARE that Treaty of Peace with Japan does not bar
the claims of the Filipina “comfort women” and any waiver of claims arising therefrom does not cover jus cogens norms and the erga omnes obligation of states to prosecute crimes against humanity and war crimes under customary international law,

(c) DECLARE that the Secretary of Foreign Affairs and the Executive Secretary committed grave abuse of discretion amounting to lack or excess of jurisdiction in refusing to espouse the claims of Filipina ‘comfort women’ for the crimes against humanity and war crimes committed against them;

(d) ORDER the Secretary of Foreign Affairs and the Executive Secretary to espouse the claims of Filipina ‘comfort women’, specifically demanding an official apology from the State of Japan and legal compensation for the rapes Filipina ‘comfort women’ endured from the hands of the Japanese military in World War II.

(e) DECLARE THAT The Petitioners are entitled to a Writ of Preliminary Mandatory Injunction against the Respondents to require their espousal of Petitioners’ claims for official apology and other forms of reparations against the State of Japan before the International Court of Justice or other international legal forums or tribunals.

(f) DIRECT THE RESPONDENTS to espouse the Petitioners’ claims for official apology and other forms of reparations against the State of Japan before the International Court of Justice or other international legal forums or tribunals.

Other relief just and equitable under the premises are likewise prayed for.

Due to the shortage of messengerial services, distance and lack of time this pleading is being served to the other parties by registered mail in accordance with Section 11, Rule 13 of the Revised Rules of Court.

ROMEL REGALADO BAGARES

COPY FURNISHED:

Office of the Executive Secretary
Malacanang, Manila

Department of Foreign Affairs
2230 Roxas Blvd
Pasay City

Department of Justice
Padre Faura Street
Manila City

Office of the Solicitor General
134 Amorsolo St.
Legaspi Village
Makati City

Sir Harry…when will you file a suspension or disbarment cases to those geriatric magistrates who signed the plagiarized judgment? I think they should resign because they are patently negligent of their duty to be always honest and circumspect in their decisions as judges…the SC requires us lawyers and law students to be honest in every aspect of our daily lives, and yet, they themselves cannot even follow what they preached? Suspension or disbarment is in order…either way, it should strengthen the SC as an institution if it is able show that it can police its ranks. Kudos to you, Sir, for bravely filing a rare Supplemental Motion for Reconsideration…sana hindi “NOTED” or “SUBMITTED” sagot nila dito.

[…] with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.” In a supplemental motion for reconsideration filed Monday, Roque reiterated the stand of the Lolas that their claims could not have been a Legal subject of […]

[…] 2. The Vinuya decision denied the petition. Professor Roque filed an initial Motion for Reconsideration, subject to the submission of a more extended Supplemental Motion for Reconsideration (Supplemental MR) under the Philippine Rules of Court. Professor Roque and his colleague, Attorney Romel Bagares, closely coordinated with me in the preparation of the Supplemental MR . After we discussed the legal arguments, I requested Attorney Bagares to recheck all sources cited in the Vinuyadecision, as is customary for us in preparing appellate pleadings. Several days later, Attorney Bagares and Professor Roque discovered that many significant portions of the Vinuya decision appeared to have been lifted without attribution from the works of International Law authors (Professor Evan Criddle and Professor Evan Fox-descent’s 2009 Article in the Yale Journal of International Law, titled “A Fiduciary Theory of Jus Cogens”; the book of Dr. Christian Tams, titled Enforcing Erga Omnes Obligations in International Law, published by Cambridge University Press; and an article by Mark Ellis, Executive Director of the International Bar Association, in the 2006 volume of Case Western Journal of International Law, entitled “Breaking the Silence: On Rape as an International Crime”). What was worse than the lifting without attribution of these sources was that the Vinuya Decision completely twisted what the authors said in their works. Professor Roque and Attorney Bagares decided to file the Supplemental MR inviting the Philippine Supreme Court’s attention to this grave matter, showing that the misrepresentation of these works erroneously laid the foundation for the Court’s decision to deny the petition. The Supplemental MR also included the rest of the arguments of the petition. The full text of the Supplemental MR can be found here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/ […]

[…] 2. The Vinuya decision denied the petition. Professor Roque filed an initial Motion for Reconsideration, subject to the submission of a more extended Supplemental Motion for Reconsideration (Supplemental MR) under the Philippine Rules of Court. Professor Roque and his colleague, Attorney Romel Bagares, closely coordinated with me in the preparation of the Supplemental MR . After we discussed the legal arguments, I requested Attorney Bagares to recheck all sources cited in the Vinuya decision, as is customary for us in preparing appellate pleadings. Several days later, Attorney Bagares and Professor Roque discovered that many significant portions of the Vinuyadecision appeared to have been lifted without attribution from the works of International Law authors (Professor Evan Criddle and Professor Evan Fox-descent’s 2009 Article in the Yale Journal of International Law, titled “A Fiduciary Theory of Jus Cogens”; the book of Dr. Christian Tams, titled Enforcing Erga Omnes Obligations in International Law, published by Cambridge University Press; and an article by Mark Ellis, Executive Director of the International Bar Association, in the 2006 volume of Case Western Journal of International Law, entitled “Breaking the Silence: On Rape as an International Crime”). What was worse than the lifting without attribution of these sources was that the Vinuya Decision completely twisted what the authors said in their works. Professor Roque and Attorney Bagares decided to file the Supplemental MR inviting the Philippine Supreme Court’s attention to this grave matter, showing that the misrepresentation of these works erroneously laid the foundation for the Court’s decision to deny the petition. The Supplemental MR also included the rest of the arguments of the petition. The full text of the Supplemental MR can be found here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/ […]

[…] 2. The Vinuya decision denied the petition. Professor Roque filed an initial Motion for Reconsideration, subject to the submission of a more extended Supplemental Motion for Reconsideration (Supplemental MR) under the Philippine Rules of Court. Professor Roque and his colleague, Attorney Romel Bagares, closely coordinated with me in the preparation of the Supplemental MR . After we discussed the legal arguments, I requested Attorney Bagares to recheck all sources cited in the Vinuya decision, as is customary for us in preparing appellate pleadings. Several days later, Attorney Bagares and Professor Roque discovered that many significant portions of the Vinuya decision appeared to have been lifted without attribution from the works of International Law authors (Professor Evan Criddle and Professor Evan Fox-descent’s 2009 Article in the Yale Journal of International Law, titled “A Fiduciary Theory of Jus Cogens”; the book of Dr. Christian Tams, titled Enforcing Erga Omnes Obligations in International Law, published by Cambridge University Press; and an article by Mark Ellis, Executive Director of the International Bar Association, in the 2006 volume of Case Western Journal of International Law, entitled “Breaking the Silence: On Rape as an International Crime”). What was worse than the lifting without attribution of these sources was that the Vinuya Decision completely twisted what the authors said in their works. Professor Roque and Attorney Bagares decided to file the Supplemental MR inviting the Philippine Supreme Court’s attention to this grave matter, showing that the misrepresentation of these works erroneously laid the foundation for the Court’s decision to deny the petition. The Supplemental MR also included the rest of the arguments of the petition. The full text of the Supplemental MR can be found here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/ […]

[…] basis of this alleged “judicial plagiarism” and “misrepresentation,” the plaintiffs filed a motion for reconsideration. Members of the University of the Philippines College of Law (none of them acting as counsel in […]